The Indian evidence act (I. of 1872)

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The Indian evidence act (I. of 1872)

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THE INDIAN EVIDENCE ACT (I. OF 1872).

THE

INDIAN EVIDENCE ACT

(I. of 1872).

WITH AN INTEODUCTION

PRINCIPLES *0E JUDICIAL EVIDENCE.

By JAMES FITZJAMES STEPHEN, Q.C.

fLanSon:

MACMILLAN AND CO.

Calcutta: Thacker, Spink & Co. ; Bombay: Thackeb,Vining & Co.

MDCOCLXXII.

Z061 £ mn

PEBFACE.

On the 5th March, 1872, in moving that the " Indian

" Evidence Act " shovdd be taken into consideration

by the Legislative Council, I said—" many topics

" closely connected with the subject of Evidence are

" incapable of being satisfactorily dealt with by ex-

" press law. It would be easy to dilate upon the theory

" on which the whole subject rests, and the manner in

" which an Act of this kind should be used in practice.

" I think, however, that it would not be proper to

" do so on the present occasion. I have therefore

" put into writing what I have to say on these

" subjects, and I propose to publish what I have

" written, by way of a commentary upon, or intro-

" duction to, the Act itself I hope that this may be

" some use to Civil Servants who are preparing

" in England for their Indian career, and to the law

" students in Indian universities. The subject is

" one which reaches far beyond law. The law of

"evidence is nothing unless it is founded upon a

" rational conception of the manner in which truth

" as to all matters of fact whatever ought to be in-

" vestigated."

This, written for the most part before these

remarks were made, but corrected and completed

since my return to England, is the Introduction re-

ferred to.

AuffUst.SOth, 1872.

i, Papek Buildings, Tbmpli?.

POSTSCEIPT.

In the Gazette of India of August 17, 1872, a Bill

for the Amendment of the Evidence Act is published

for the first time. In the Statement of Objects and

Reasons appended to the BUI it is said that " the

primary object of this Bill is to continue certain rules

"which it is believed were inadvertently repealed by

the Indian Evidence Act." It is added that "at the

same time opportiuiity is taken to correct some

clerical and other accidental errors to which attention

has been called."

If the Bill has already become or should hereafter

become law in its present shape, the following errata

should be made in the Act as printed below :

—

1. S. 32, clauses 5 and 6, after "relationship"

insert " by blood, marriage, or adoption."

2. S. 41, in each of the last three paragraphs, after

the word "judgment" add the words "order

or decree."

3. S. 45, after the word "art" add "or in ques-

tions as to the identity of handwriting."

4. S. 57, paragraph 13, after the word "road" add" on land or at sea."

5. S. 66, after " in whose possession the document

is " add " or to his attorney or pleader."

Postscript. vii

6. In S. 9i, exception (2), for "under the Indian

Succession Act " read. " admitted to probate in

British India."

7. In S. 92, proviso 1, for " want of failure " read

" want or failure."

S. In S. 108, for "when" read "provided that

when," and for the word " on" in the last line

read " shifted to."

9. In S. 126 (paragraph immediately preceding the

explanation)and in section 128 insert "pleader"

after "barrister."

10. In S. 126 paragraph 2, for "criminal" read

" illegal."

11. In S. 155, paragraph 2, for " or has had the offer

of a bribe " read " or has accepted the offer of a

bribe."

12. In the repealing schedule No. 3, third column,

add "except section 12."

Of these errata three, viz., Nos. 8, 10, and 11, make

substantial alterations in the Act on points on which

it was drawn advisedly in the words in which it now

stands, for various reasons which were carefully con-

sidered and regarded as satisfactory. Upon these

points there is of course room for difference of opinion,

but there was no inadvertence.

September 30th, 1872.

4, Paper Buildwgs, Temple.

TABLE OF CONTENTS OF INTRODUCTION.

CHAPTEE I.

GENEEAL DISTRIBUTION OP THE SUBJECT.—Pp. 1-12.

PAGE

Technical and General Elements of Law . . 1

English Law of Evidence ^ .

Fundamental Rules of English LawAmbiguity ofword " Evidence

"

Natural Distribution of Subject .

Relevancy of Facts .

Proof of Relevant Facts

Production of Proof .

Tabiolar Scheme . . . .

CHAPTEE II.

2

3—56,7

7,8

9

10

11

12

A STATEMENT OF THE PRINCIPLES OF INDUCTION ANDDEDUCTION, AND A COMPARISON OP THEIR APPLICA-TION TO SCIENTIFIC AND JUDICIAL INQUIRIES—Pp. 13—15.

Principle of Judicial and Scientific Inquiries .... 13

General Object of Science . . . 14

Pacts ... 15, 16

Definition of Pacts in Evidence Act . . .16Propositions . . . ... 16

True Propositions . . ... 17

How framed ... . . . 17

Induction and Deduction . . ... 18, 19

Methods of Agreement and Difference . . 20, 21

Their Difficulties .... ... 21

X Contents.

of Proba-

How dealt witt ... . .

Deductive Method

Comparison of Judicial and Scientific Inquiries

Difference as to Amount of Evidence

Difference as to Object of Evidence .

Difference as to Trustworthiness of Evidence

Advantages of Judicial Inquiries

Maxims easily appreciated

Limitations easily perceived

Simplicity of Problems

Illustrations

Summary .

Result of Judicial Inquiries to produce high degree (

bility . . ....Meaning of Moral Certainty

Moral Certainty a Question of Prudence .

Principle on which Probabilities are estimated

Two Classes of Inferences in Judicial Inquiries .

Theory of these Inferences

Inferences from Assertion to Truth of Matter Asserted

Its Difficulties not AffeotedbyEulfes of Evidence

Grounds of Belief and Disbelief of a Witness .

Inference from Truth of Matters Asserted to other Matters

Comparatively easy . . ...Facts proved must fulfil Test of Method of Difference

Rule as to Cm-pus Delicti .

Summary of Conclusions

PAGE

. 22,23

. 23,24

25

25—27

. 27, 28

. 28,29

29

30

31

32

32,33

. 33,34

35

35

36

37

38,39

40

40

41,42

42,43

45

46

47

48,49

50,51

CHAPTER III.

THE THEORY OF RELEVANCY, WITH ILLUSTRATION.—Pp. 52—128.

Relevancy means Connection by vfay of Cause and Effect 52 — 54

Reasons of wider Definition in Evidence Act . . . 55,56

Illustrations :—Case of E. v. Donellan . . . 67 62

Case of R. v. Belaney .... 63—67Case of R. V. Richardson . . 68—75

Case of R. v. Patch 76, 81

Case of R. v. Palmer , . . 82—121

Irrelevant Eacts . . 1-22

Contents. XI

Facts apparcmtly but not really relevant .

Exclusion of Hearsay .

Reasons for it . ...Effect of Section 11

Unconnected but Similar Transactions

Evidence of Opinion ....Exceptions to Rules on Irrelevancy .

Admissions ....Statements by Witnesses who cannot be called

Statements under Special Circumstances

Judgments ....Opinions ... ...Character

PAGE

. 122

. 123

123—124

165, 124

. 121

. 125

. 125

. 125

. 126

126

. 127

. 127

127, 128

CHAPTEE IV.

GENERAL OBSERVATIONS ON THE INDIAN EVIDENCEACT.-Pp. 129—134.

English Cases not referred to

Judicial Notice . . . .

Oral Evidence ......Documentary Evidence .....When Documents are Exclusive Evidence

Principle of Provisions on Documentary Evidence

Presumptions .... . .

English Law as to Presumptions

How Affected by Evidence Act

Legal Principles improperly called Presumptions

Estoppels . . . .

. 129

129

. 129

. 129

130

. 131

131—132

132, 133

. 133

. 133

. 134

THE

PRINCIPLES OF JUDICIAL EYIDENCEBEING AN INTEODtfCTION TO THE

INDIAN EVIDENCE ACT(I. of 1872).

CHAPTER I.

GENERAL DISTRIBUTION OF THE SUBJECT.

Almost every branch of law is composed of rules of which chap. i.

some are grounded upon practical convenience and the Technical

experience of actual litigation, whilst others are closely con- ^"^^^^"'^'

nected with the constitution of human nature and society, ments of

Thus the criminal law contains many provisions of no general

interest, such as those which relate to the various forms

in which dishonest persons tamper with or imitate coin;

but it also contains provisions, such as those which relate to

the effect of madness on responsibility, which depend on

several of the most interesting branches of moral and physical

learning. This is perhaps more conspicuously true ofthe law

of evidence than of any other branch of the law. Many

of its provisions, however useful and necessary, are technical

;

and the enactments in which they are contained can claim

no other merit than those of completeness and perspicuity.

The whole subject of documentary evidence is of this nature.

Other branches of the subject, such as the relevancy of facts,

are intimately connected with the whole theory of human

knowledge, and with logic, as applied to human conduct.

The object of this introduction is to illustrate these parts of

the subject, by stating the theory on which they depend

and on which the provisions of the Act proceed. As to more

2 General Distribution of the Subject.

Chap. I. technical matters, the Act speaks for itself, and I have

nothing to add to its contents.

Relation of The Indian Evidence Act is little more than an attempt to

Evidence yeduce the English law of evidence to the form of expressAct to En- °

•T. J •

glish law propositions arranged in their natural order, with some modi-

denc^ fications rendered necessary by the peculiar circumstances

of India.

English Like almost every other part ofEnglish law, the English law

law of Qf evidence was formed by degrees. No part of the law hasevidence- ./ o

been left so entirely to the discretion of successive generations

of Judges. The Legislature tiU very recently interfered

but little with the matter, and since it began to interfere, it

has done so principally by repealing particular rules, such as

that which related to the disc|;ualification of witnesses by

interest, and that which excluded the testimony of the parties

;

but it has not attempted to deal with the main principles of the

subject.

Its want It is natural that a body of law thus formed by degrees,

°'^^'"' and with reference to particular cases, should be destitute ofrange- '-

ment. arrangement, and in particular that its leading terms should

never have been defined by authority ; that general rules

should have been laid down with reference rather to par-

ticular circumstances than to general principles, and that it

should have been found necessary to qualify them by excep-

tions inconsistent with the principles on which ihey proceed.

Difficulties When this confusion had once been introduced into the

ing it. subject it was hardly capable of being remedied either by

courts of law, or by writers of text-books. The courts of

law could only decide the cases which came before them

according to the rules in force. The writers of text-books

could only collect the results of such decisions. The Legisla-

ture might, no doubt, have remedied the evil,but comprehensive

legislation upon abstract questions of law has never yet been

attempted by Parliament in any one instance, though it has

in several weU-kuown cases been attended with signal success

in India.

Ftindamental Rules. -i

That part of the English law of evidence which professes to Chap. i.

be founded upon anything in the nature of a theory on the Funda-

subject may be reduced to the following rules :— mies^of

(1) Evidence must be confined to the matters in issue.English

law or

(2) Hearsay evidence is not to be admitted. evidence.

(3) In all cases the best evidence must be given.

Each of these rules is very loosely expressed. The word

'evidence,' which is the leading term of each, is undefined

and ambiguous.

It sometimes means the words uttered and things exhibited

by witnesses before a court of justice.

At other times, it means the facts proved to exist by those

words or things, and regarded as the groundwork of inferences

as to other facts not so proved.

Again, it is sometimes used as meaning to assert that a par-

ticular fact is relevant to the matter under inquiry.

The word 'issue' is ambiguous. In many cases it is

used with reference to the strict rules of English special

pleading, the main object of which is to define, with great

accuracy, the precise matter which is affirmed by the one

party to a suit, and denied by the other.

In other cases it is used as embracing generally the whole

subject under inquiry.

Again, the word ' hearsay ' is used in various senses. Some-

times it means whatever a person is heard to say ; sometimes

it means whatever a person declares on information given by

some one else; sometimes it is treated as being nearly

synonymous with ' irrelevant.'

If the rule that evidence must be confined to the matters Ambiguity

in issue were construed strictly, it would run thus :' ISTo °^ confin^^

witness shaU ever depose to any fact, except those facts which ™g ^vi-^ > ' ^

_dence to

by the form of the pleadings are affirmed on the one side and issue.

denied on the other.' So understood, the rule would obviously

put a stop to the whole administration of justice, as it would

exclude evidence of decisive facts.

A sues B on a promissory note. B denies that he made the

note.


Chap. I. A has a letter from B in which he admits that he made the

note, and promises to pay it. This admission could not be

proved if the rule referred to were construed strictly, because

the issue is, whether B made the note, and not whether he

admitted having made it.

This absurd result is avoided by using the word ' evidence'

as meaning not testimony but any fact from which any other

fact may be inferred. Thus interpreted, the rule that evidence,

must be confined to matters in issue will run thus :' No facts

, may be proved to exist, except facts in issue or facts from

which the existence of the facts in issue can be inferred;' but

if the rule is thus interpreted, it becomes so vague as to be of

little use ; for the question naturally arises, from what sort of

facts may the existence of other facts be inferred ? To this

question the law of England gives no explicit answer at all,

though partial and confused answers to parts of it may be

inferred from some of the exceptions to the rule which excludes

hearsay.

For instance, there are cases from which it may be inferred

that evidence may sometimes be given of a fact from which

another fact may be inferred, although the fact upon which

the inference is to be founded is a crime, and although the

fact to be inferred is also a crime for which the person agaiast

whom the evidence is to be given is on his trial.

The full answer to the question, ' what facts are relevant,'

which is the most important of aU the questions that can be

asked about the law of evidence, has thus to be learnt partly

by experience, and partly by collecting together such crooked

and narrow illustrations of it as the one just given.

Ambiguity The rule that ' hearsay is no evidence ' is vague to the lastof the rule

^ n ,-< «,.-,,excluding degree, as each oi the meanmgs of which the word ' hearsay

'

hearsay.^^ susccptiblc is somctimes treated as the true one. As the

rule is nowhere laid down in an authoritative manner, its

meaning has to be collected from the exceptions to it, andthese exceptions, of which there are as many as twelve or

thirteen, imply at least three different meanings of the word' hearsay.'

Hearsay.

Thus it is a rule that evidence may he given of statements Chap. i.

which accompany and explain relevant actions. As no rule

determines what actions are relevant, this is in itself unsatis-

factory ; but as the rule is treated as an exception to the rule

excluding hearsay, it implies that 'hearsay' means that

which a man is heard to say. If this is the meaning of

hearsay, the rule which excludes it would run thus :' No

witness shall ever he allowed to depose to any thing which he

has heard said by any one else.' The result of this would be

that no verbal contract could ever be proved, and that no one

could ever be convicted of using threats with intent to extort

money, or of defamation by words spoken, except in virtue of

exceptions which stultify the rule.

Most of the exceptions indicate that the meaning of the

word ' hearsay ' is that which a person reports on the infor-

mation of some one else, and not upon the evidence of his own

senses. This, with certain exceptions, is no doubt a valuable

rule, but it is not the natural meaning of the words ' hearsay

is no evidence,' and it is in practice almost impossible to divest

words of their natural meaning.

The rule that documents which support ancient possession

may be admitted as between person who are not parties to

them, is treated as an exception to the rule excluding hearsay.

This implies that the word 'hearsay' is nearly, if not

quite, equivalent to the word ' irrelevant.' But the English

law contains nothing which approaches to a definition of

relevancy.

The rule which requires that the best evidence of which a Rules asto nP^t

, fact is susceptible should be given, is the most distinct evidence.

of the three rules referred to above, and it is certainly

one of the most useful. It is simply an amplification of the

obvious maxim, that if a man wishes to know aU that he can

know about a matter, his own senses are to him the highest

possible authority. If a hundred witnesses of unimpeachable

character were all to swear to the contents of a sealed letter,

and if the person who heard them swear opened the letter


Chap. I. and found that its contents were different, he would conclude,

without the intervention of any conscious process of reasoning

at all, that they had sworn what was not true.

Ambiguity The ambiguity of the word ' evidence ' is the cause of a

"evidence." great deal of obscurity apart from that which it gives to the

rules above mentioned. In scientific inquiries, and for popular

and general purposes, it is no doubt convenient to have one

word which includes

—

(1) The testimony on which a given fact is believed.

(2) the facts so believed, and

(3) the arguments founded upon them.

For instance, tn the title of " Paley's Evidences of Chris-

tianity," the word is used in this sense. The nature of the

work was not such as to give much importance to the dis-

tinction which the word overlooks. So, in scientific inquiries,

it is seldom necessary (foi reasons to which I shall have

occasion to refer hereafter) to lay stress upon the difference

between the testimony on which a fact is believed, and the

fact itself In judicial inquiries, however, the distinction is

most important, and the neglect to observe it has thrown

the whole subject into confusion by causing English lawyers

to overlook the leading distinction which ought to form the

principle on which the whole law should be classified. I

mean the distinction between the relevancy of facts and the

mode of proving relevant facts.

Effects of The use of the one name ' evidence ' for the fact to be

l.aiTty.'"

'' proved, and the means by which it is to be proved, has given

a double meaning to every phrase in which the word occurs.

Thus, for instance, the phrase ' primary evidence ' sometimes

means a relevant fact, and sometimes the original of a docu-

ment as opposed to a copy. ' Circumstantial evidence ' is

opposed to ' direct evidence.' But ' circumstantial evidence

usually means a fact, from which some other fact is inferred,

whereas ' direct evidence ' means testimony given by a manas to what he has himself perceived by his own senses. It

would thus be correct to say that circumstantial evidence

English Law ofEvideiue. 7

must be proved by direct evidence—a clumsy mode of expres- Chap. i.

sion, which is in itself a mark of confusion of thought. The

evil, however, goes beyond mere clumsiness of expression.

People have naturally enough supposed that circumstantial

and direct evidence admit of being contrasted in respect of

their cogency, and that different canons can be laid down, as

to the conditions which they ought to satisfy before the court

is convinced by them. This, I think, confuses the theory

of proof, and is an error, due entirely to the ambiguity of the

word ' evidence.'

It would be a mistake to infer from the unsystematic Merits of

character and absence of an'angement which belong to the law of

English law of evidence that the substance of the law itself iss™^°'=£-

bad. On the contrary, it possesses in the highest degree the

characteristic merits of English case law. English case law,

as it is, is to what it ought to be, and might be, if it were

properly arranged, what the ordinary conversation of a very

clever man on all sorts of subjects written down as he uttered

it, and as passing circumstances furnished him with a text,

would be to the matured and systematic statement of his deli-

berate opinions. It is full of the most vigorous sense, and is

the result of great sagacity applied to vast and varied ex-

perience.

The manner in which the law of evidence is related to Natural

the general theories which give it its interest can be under- tion"ofVhe

stood only by reference to the natural distribution of the subject.

subject, which appears to be as follows ;

—

All rights and liabilities are dependent upon and arise out

of facts.

Every judicial proceediag whatever has for its purpose the

ascertaining of some right or liability. If the proceeding is

criminal, the object is to ascertain the liability to punishment

of the person accused. If the proceeding is civil, the object

is to ascertain some right of property or of status, or the

right of one party, and the liability of the other, to some form

of relief.

tion.


Chap. I. In order to effect this result, provision must be made by

law for the foUowing objects :

—

First, the legal effect of

particular classes of facts in establishing rights and liabilities

must be determined. This is the province of what has been

called ^substantive law. Secondly, a course of procedure

must be laid down by which persons interested may apply the

substantive law to particular cases.

The law of procedure includes, amongst others, two main

branches,—(1) the law of pleading, which determines what in

particular cases are the questions in dispute between the

parties, and (2) the law of evidence, which determines how the

parties are to convince the court of the existence of that state

of facts which, according to the provisions of substantive law,

would establish the existence of the right or liability which

they allege to exist.

Illustra- The following is a simple illustration : A sues B on a bond

for Rs. 1,000. B says that the execution of the bond wasprocured by coercion.

The substantive law is, that a bond executed under coercion

cannot be enforced.

The law of procedure lays down the method according to

which A is to establish his right to the payment of the sumsecured by' the bond. One of its provisions determines the

manner in which the question between the parties is to be

stated.

The question stated under that provision is, whether the

execution of the bond was procured by coercion.

The law of evidence determines

—

(1) What sort of facts may be proved in order to establish

the existence of that which is defined by the substantive law

as coercion.

(2) What sort of proof is to be given of those facts.

(3) Who is to give it.

(4) How is it to be given.

Thus, before the law of evidence can be understood or

applied to any particular case, it is necessary to know so

Relevancy of Facts. 9

mucli of the substantive law as determines what, under given Chap. I.

states of fact, would be the rights of the parties, and so

much of the law of procedure as is sufficient to determine

what questions it is open to them to raise in the particular

proceeding.

Thus in general terms the law of evidence consists of Result,

provisions upon the following subjects :

(1) The relevancy of facts.

(2) The proof of facts.

(3) The production of proof of relevant facts.

The foregoing observations show that this account of the

matter is exhaustive. For if we assume that a fact is knownto be relevant, and that its existence is duly proved, the

Court is in a position to go on to say how it affects the

existence, nature, or extent of the right or liability, the

ascertainment of which is the ultimate object of the inquiry,

and this is all that the Court has to do.

The matter must, however, be carried further. The three

general heads may be distributed more particularly as follows :

I .TJie Relevancy of Facts.—Facts may be related to Reievancy

rights and liabilities in one of two ways,

—

i^F *^'t' in

(1) They may by themselves, or in connection with other issue,

facts, constitute such a state of things that the existence of

the disputed right or liability would be a legal inference from

them. From the fact that A is the eldest son of B, there

arises of necessity the inference that A is by the law of

England the heir-at-law of B, and that he has such rights as

thaf^status involves. From the fact that A caused the death

of B under certain circumstances, and with a certain inten-

tion or knowledge, there arises of necessity the inference that

A murdered B, and is Liable to the punishment provided by

law for murder.

Facts thus^related to a proceeding may be called facts in

issue, unless their existence is undisputed.

(2) Facts, which are not themselves in issue in the sense 2. Rele-• 1 • V3Ilt 13.Cts

above explained, may affect the probability of the existence

lo General Distribution of the Subject.

Chap. I. of facts in issue, and be used as the foundation of inferences

respecting them ; such facts are described in the Evidence

Act as relevant facts.

All the facts with which it can in any event be necessary

for courts of justice to concern themselves, are included in

these two classes.

The first great question, therefore, which the law of

evidence should decide is, what facts are relevant. The

answer to this question is to be learnt from the general theory

of judicial evidence explained in the foUowing chapter.

What facts are in issue in particular cases is a question to be

determined by the substantive law, or in some instances by that

branch of the law of procedure which regulates the forms of

pleading, civil or criminal.

Proof of II. The Proof of Relevant Facts.—Whether an alleged fact

facts. is a fact in issue or a relevant fact, the court can draw no in-

ference from its existence tiH it believes it to exist ; and it is

obvious that the belief of the court in the existence of a given

fact ought to proceed upon grounds altogether independent

of the relation of the fact to the object and nature of the

proceeding in which its existence is to be determined. The

question is whether A wrote a letter. The letter may have

contained the terms of a contract. It may have been a libel.

It may have constituted the motive for the commission of a

crime by B. It may supply proof of an alibi in favour of A.

It may be an admission or a confession of crime ; but what-

ever may be the relation of the fact to the proceeding, the

court cannot act upon it unless it believes that A did write

the letter, and that belief must obviously be produced, in each

of the cases mentioned, by the same or similar means. If

^he court requires the production.of the original when the

writing of the letter is a crime, there can be no reason why it

should be satisfied with a copy when the writing of the letter

is a motive for a crime. In short, the way in which a fact

should be proved depends on the nature of the fact, and not

on the relation of the fact to the proceeding.

Oral and Documentary Evidence. i ]

Some facts are too notorious to reqiiire any proof at all, and Chap. I.

of these the court will take judicial notice; but if a fact does i. judicia

require proof, the instrument by which the court must be2°'oral

convinced of it is evidence ; by which I mean the actual words evidence.

uttered, or documents, or other things actually produced mentary"

in court, and not the facts which the court considers to be^'"^^"'=^-

proved by those words and documents. Evidence in this sense

of the word must be either (1) oral or (2) documentary. Athird class might be formed of things produced in court,

not being documents, such as the instruments with which a

crime was committed, or the property to which damage had

been done, but this division would introduce needless intricacy

into the matter. The reason for distinguising between oral

and documentary evidence is that in many cases the existence

of the latter excludes the employment of the former ; but the

condition of material things, other than documents, is usually

proved by oral evidence, so that there is no occasion to dis-

tinguish between oral and material evidence.

It may be said that in strictness aU evidence is oral, as

documents or other material things must be identified by oral

evidence before the court can take notice of them. It is

unnecessary to discuss the justice of this criticism, as the

phrase ' documentary evidence ' is not ambiguous, and is

convenient and in common use. The only reason for

avoiding the use of the word ' evidence ' in the general sense

in which most writers use it, is that it leads, in practice, to

confusion, as has been already pointed out.

III. The Production of Proof.—This includes the subject Produc-

of the burden of proof : the rules upon which answer the ^^°^

question, By whom is proof to be given ? The subject of

witnesses : the rules upon which answer the question, who

is to give evidence, and under what conditions ? The subject

of the examination of witnesses : the rules upon which answer

the question. How are the witnesses to be examined, and

how is their evidence to be tested ? Lastly, the effect upon


Chap. I. the subsequent proceedings, of mistakes in the reception and

rejection of evidence may be included under this head.

The following tabular scheme of the subject may be an

assistance to the reader. The figures refer to the sections of

the Act which treat of the matter referred to :

—

The object of legal proceedings is the determinationof ri^ts and liabilities Trhich depend on facts

(§3).

In issue, § 3.I

Relevant to

the issue (§ 3)

which may be

* They may be

connected with theissue, § 5—16.—admissions, § 17—31.

statements by personswho cannot becalled as witnesses,

§ 32—3.—statements under spe-

cial circnaistances,

§ 34-9.-judgments in other

cases, § 40—44.

opinions, \ 45— 51.

—character, § 52—5.

Judicially noticed,

ch. iii.

proved byoral evidence,

ch. iv.

proved bydocumentary

evidence (ch. v.)

which is

This Proof must be produced by theparty on whom the burden ofproofrests, (ch. vii.), unless he is es-

topped (ch. viii.)

If given by witnesses (ch. ix.) theymust testify, subject to rules as to

examination (ch. x.). Conse-quence of mistakes defined, ch. zi.

—primary or se-

condary,

§61—6.—attested or un-

attested,

§ 67—73.-public or private,

§ 74—78.-sometimes pre-

sumed to begenuine,

§ 79—90.- exclusive or not

of oral evi-

dence, ch. vi.

Ge7ieral Theory of Jtidicial Evidence. 1

3

CHAPTEE II.

A STATEMENT OF THE PRINCIPLES OF INDUCTION AND

DEDUCTION, AND A COMPARISON OF THEIK APPLICATION TO

SCIENTIFIC AND JUDICIAL INQUIRIES.

The general analysis given in the last chapter of the subjects Chap. il

to which the law of evidence must relate, sufficiently explains

the general arrangement of the Indian Evidence Act. To

understand the substance of the Act it is necessary to have

some acquaintance with the general theory ofjudicial evidence.

The object of the present' chapter is to explain this theory

and to compare its application to physical science with its

application to judicial inquuies.

Mr. Huxley remarks in one of his latest works—" The J^""-^"''"

•' ley onvast results obtained by science are won by no mystical physical

faculties, by no mental processes, other than those which are judicial in-

practised by every one of us in the humblest and meanest l*"''^^-

affairs of life. A detective policeman discovers a burglar from

the marks made by his shoe, by a mental process identical

with that by which Cuvier restored the extinct animals of

Montmartre from fragments of their bones, nor does that

process of induction and deduction by which a lady finding

a stain of a particular kind upon her dress, concludes that

somebody has upset the inkstand thereon, differ in any way

from that by which Adams and Leverrier discovered a new

planet* The man of science, in fact, simply uses with scru-

pulous exactness the methods which we all habitually and at

every moment use carelessly."

* Lay Sermons, p. 78.

HChap. II.

Applica-

tion of his

remarlcs .to

law of

evidence.

Generalobject of

science.

Facts.

External

facts.

A Statement of the Principles of Induction.

These observations are capable of an inverse application.

If we wish to apply the methods in question to the investi-

gation of matters of every-day occurrence, with a greater

degree of exactness than is commonly needed, it is necessary

to know something of the theory on which they rest. This

is specially important when, as in judicial proceedings, it is

necessary to impose conditions by positive law upon such

investigations. On the other hand, when such conditions

have been imposed, it is difficult to understand their import-

ance or their true significance, unless the theory on which

they are based is understood. It appears necessary for these

reasons to enter to a certain extent upon the general subject

of the investigation of the truth as to matters of fact, before

attempting to explain and discuss that particular branch of

it which relates to judicial proceedings.

First, then, what is the general problem of science ? It is

to discover, collect, and arrange true propositions about facts.

Simple as the phrase appears, it is necessary to enter upon

some illustration of its terms, namely, (1) facts, (2) proposi-

tions, (3) the truth of propositions.

First, then, what are facts 1

During the whole of our waking life we are in a state ot

perception. Indeed, consciousness and perception are two

names for one thing, according as we regard it from the

passive or active point of view. We are conscious of every-

thing that we perceive, and we perceive whatever we are

conscious of Moreover, our perceptions are distinct from

each other, some both in space and time, as is the case with

all our perceptions of the external world ; others, in time only,

as is the case with our perceptions of the thoughts and

feelings of our own minds.

Whateyer may be the objects of our perceptions, they

make up collectively the whole sum of our thoughts and

feelings. They constitute, in short, the world with which we

are acquainted, for without entering upon the question of the

existence of the external world, it may be asserted with

External and Internal Facts. 1

5

confidence that our knowledge of it is composed, jir&t, of our Chap. ii.

perceptions ; and, secondly, of the inferences which we drawfrom them as to what we should perceive if we were favourably-

situated for that purpose. The human body supplies anillustration of this. No one doubts that his own body is

composed not only of the external organs which he perceives

by his senses, but of numerous internal organs, most of which it

is highly improbable that either he nor any one else wiUever

see or touch, and some of which he never can, from the nature

of things, see or touch as long as he lives. When he afiSrms

the existence of these organs, say the brain or the heart, what

he means is that he is led to believe from what he has been told

by other persons about human bodies, or observed himself in

other human bodies, that if his skull and chest were laid

open, those organs would be perceived by the senses of persons

who might direct their senses towards them.

There is another class of perceptions, transient in their internal

duration, and not perceived by the five best marked senses,^^'^'^^'

which are, nevertheless, distinctly perceptible and of the

utmost importance. These are thoughts and feelings. Love,

hatred, anger, intention, will, wish, knowledge, opinion, are all

perceived by the person who feels them. When it is affirmed

that a man is angry, that he intends to sell an estate, that he

knows the meaning of a word, that he struck a blow voluntarily

and not by accident, each proposition relates to a matter

capable of being as directly perceived as a noise or a flash of

light. The only difference between the two classes of propo-

sitions is this. When it is affirmed that a man has a given

intention, the matter affirmed is one which he and he only

can perceive; when it is affirmed that a man is sitting or

standing, the matter affirmed is one which may be perceived

not only by the man himself, but by any other perso:* able to

see, and favourably situated for the purpose. But the circum-

stance that either event is regarded as being, or as having

been, capable of being perceived by some one or other, is

what we mean, and aU that we mean, when we say that it

i6 A Statement of the Principles ofInduction.

Definition

of facts in

EvidenceAct.

Chap. II. exists or existed, or when we denote the same thing by calling

it a fact. The word ' fact ' is sometimes opposed to theory

sometimes to opinion, sometimes to feeling, but all these

modes of using it are. more or less rhetorical When it is

used with any degree of accuracy it implies something which

exists, and it is as difficult to attach any meaning to the

assertion that a thing exists which neither is, nor under any

conceivable circumstances could be perceived by any sentient

being, as to attach any meaning to the assertion that anything

which can be so perceived does not, or at the time of percep-

tion did not, exist.

It is with reference to this that the word ' fact ' is defined

in the Evidence Act (§ 3) as meaning and including

—

(1) Any thing, state of things, or relation of chings capable

of being perceived by the senses, and

(2) Any mental condition of which any person is conscious.

It is important to remember, with respect to facts, that

as aU thought and language contains a certaia element of

generality, it is always possible to describe the same facts

with greater or less minuteness, and to decompose every fact

with which we are concerned into a number of subordinate

facts. Thus we might speak of the presence of several

persons in a room at one time as a fact, but if the fact were

doubted, or if other circumstances rendered it desirable, their

respective positions, their occupations, the position of the

furniture, and many other particulars might have to be

specified.

Such being the nature of facts, what is the meaning of a

proposition ? A proposition is a collection of words so related

as to raise in the minds of those who understand them a cor-

responding group of images or thoughts.

The aharacteristic by which words are distinguished from

other sounds is their power of producing corresponding

thoughts or images. I say thoughts or images, because

though most words raise what may be intelligibly called

images in the mind, this is true principally of those which

Proposi-

tions.

Framing of Propositions. 1

7

relate to visible objects. Such words as ' hard/ ' soft/ ' taste,' Chap. Ii.

' smell,' call up sufficiently definite thoughts, but they can

hardly be described as images, and the same is still more true

of words which qualify others, like ' although,' ' whereas,' and

other adverbs, prepositions and conjunctions.

The statement that a proposition, in order to be entitled to iiiusti-a-

the name, must raise in the mind a distinct group of thoughts"°"^'

or images, may be explained by two illustrations. The words

'that horse is niger' form a proposition to every one who

knows that niger means black, but to no one else. The words

' I see a sound ' form a proposition to no one, unless some

signification is attached to the word ' sound' (for instance,

an arm of the sea) which would make the words intelligible.

Such bdug a proposition, what is a true proposition ? A Tme pro-

true proposition is one which excites in the mind thoughts ^°^' '°"^'

or images corresponding to those which would be excited in

the mind of a person so situated as to be able to perceive the

facts to which the proposition relates. The words ' a man is

riding down the road on a white horse' form a proposition,

because they raise in the mind a distinct group of images.

The proposition is true if all persons favourably situated for

purposes of observation did actually perceive a corresponding

group of facts.

The next question is. How are we to proceed in order to How true

. . proposi-

ascertain whether any given proposition about facts is true, tionsareto

and in order to frame true propositions about facts ? This, as ^"^"^

already observed, is the general problem of science, which is

only another name for knowledge so arranged as to be easily

imderstood and remembered.

The facts, in the first place, must be correctly observed. Facts must' ^

. 11-''^ co-rect-

The observations made must, in the next place, be recordedm ly observed

apt language, and each of these operations is one of fa'r greater pg^i^ie"

delicacy and difficulty than is usually supposed ; for it is ''°^^^^-

almost impossible to discriminate between observation and

inference, or to make language a bare record of our percep-

tions, instead of being a running commentary upon them. To

c

1

8

A Statement of the Principles of Induction.

Chap. IT. go into these and some kindred points would extend this

inquiry beyond all reasonable bounds, and I accordingly pass

them over with this slight reference to their existence.

Assuming, then, the existence of observation and language

sufficiently correct for common purposes, how are they to be

applied to inquiries into matters of fact ?

Mr. Mill's An answer to these questions sufficient for the present

logic^—a purpose will be supplied by giving a short account of what is

fixed order g^j^ ^^ i^q subiect by Mr. Mill in his treatise on logic. Theprevails in •" •' °

the world, substancc of that part of it which bears upon the present

subject is as follows : The first great lesson learnt from the

observation of the world in which we live, is that a fixed

order prevails amongst the various facts of which it is com-

posed. Under given conditions, fire always burris wood, lead

always sinks in water, day always follows night, and night

day, and so on. By degrees we are able to learn what the

conditions are under which these and other such events

happen. We learn, for instance, that the presence of a

certain quantity of air is a condition of combustion ; that the

presence of the force of gravitation, the absence of any equal

or greater force acting in an opposite direction, and the

maintenance by the water of its properties as a fluid, are con-

ditions necessary to the sinking of lead in water ; that the

maintenance by the heavenly bodies of their respective

positions, and the persistency of the various forces by which

their paths are determined, are the conditions under which

day and night succeed each other.

Induction The great problem is to find out what particular antecedents

tion. S'^'i consequents are thus connected together, and what are

the conditions of their connection. For this purpose two

processes are employed, namely, induction and deduction.

Deduction assumes and rests upon previous inductions, and

derives a great part at least of its value from the meanswhich it affords of carrying on the process of thought from

the point at which induction stops. The questions, AVhat is

the ultimate foundation of induction ? Why are we justified

Observation of Facts. ig

in believing tliat all men will die because we have reason to Chap. ii.

believe that all men hitherto have died? Or that every

particle of matter whatever wiU continue to attract every

other particle of matter with a force bearing a certain fixed

proportion to its mass and its distance, because other particles

of matter have hitherto been observed to do so ? are ques-

tions which lie beyond the limits of the present inquiry.

For practical purposes it is enough to assume that such in-

ferences are valid, and will be found by experience to yield

true results in the shape of general propositions, from which

we can argue downwards to particular cases according to the

rules of verbal logic.

True general propositions, however, cannot be extracted Mere ob-

directly from the observation of nature or of human conduct, of™acts

as every fact which we can observe, however apparently simple, "^sufficient.

is in reality so intricate that it would give us little or no

information xinless it were connected with and checked by other

facts. What, for instance, can appear more natural and

simple than the following facts ? A tree is cut down. It

falls to the ground. Several birds which were perched upon

it fly away. Its fall raises a cloud of dust which is dispersed

by the wind, and splashes up some of the water in a pond.

Natural and simple as this seems, it raises the following

questions at least. Why did the tree fall at all ? The tree

falling, why did not the birds fall too, and how came they to

fly away ? What became of the dust, and why did it disappear

in the aii", whereas the water fell back into the pond from

which it was splashed ? To see in aU these facts so many

illustrations of the rules by which we can calculate the force

of gravity, and the action of fluids on bodies immersed in

them is the problem of science in general, and of induction and

deduction iu particular.

Generally speaking, this problem is solved by comparing Proceed-

together different groups of facts resembling each other in du'ction.

some particulars, and differing in others, and the different

inductive methods described by Mr. Mill are in reality no

20 A Statement of the Principles of Induction.

Methods of

agreementand differ-

ence.

Chap. II. more than rules for arranging these comparisons. The

methods which he enumerates are five* hut the three last

are little more than special applications of the other two,

the method of agreement and the method of difference.

Indeed the method of agreement is iticonclusive, unless it is

applied upon such a scale as to make it equivalent to the

method of difference..

The nature of these methods is as follows :

—

AU events may be regarded as effects of antecedent causes.

Every effect is preceded by a group of events, one or more

of which are its true cause or causes, and all of which are

possible causes.

The problem is to discriminate between the possible and

the true causes.

If whenever the effect occurs one possible cause occurs, the

other possible causes varying, the possible cause which is

constant is probably the true cause, and the strength of this

probability is measured by the persistency with which the

one possible cause recurs, and the extent to which the

other possible causes vary. Arguments founded on such a

state of things are arguments on the method of agreement.

If the effect occurs when a particular set of possible

causes precedes its occurrence, and does not occur when the

same set of possible causes co-exist, one only being absent,

the possible cause which was present when the effect was

produced, and was absent when it was not produced, is the

true cause of the effect. Arguments founded on such a state

of things are arguments on the method of difference.

The following illustration makes the matter plain. Various

materials are mixed together on several occasions. In

each case soap is produced, and in each case oil and alkali

are two of the materials so mixed. It is probable from this

Illustra-

tions.

* 1. The method of agreement. 2, The method of difference.

3. The joint method of agreement and difference. 4. The method

of residues. 5. The method of concomitant variations.

Rules of Induction. 2

1

that oil and alkali are the causes of the soap, and the degree, Chap. II.

of the probability is measured by the number of the experi-

ments and the variety of the ingredients other than oil and

alkali. This is the method of agreement.

Various materials, of which oil and alkali are two, are

mixed, and soap is produced. The same materials, with the

exception of the oU and alkali, are mixed, and soap is not

produced. The mixture of the oil and alkali is the cause of

the soap. This is the method of difference. The case

would obviously be the same if oil and alkali only were

mixed. Soap was unknown, and upon the mixture being

made, other things being unchanged, soap came into existence.

These are the most important of the rules of induction ; but Difficulties

induction is only one step towards the solution of the prob-—^^^^"'^^

J c i- causes pro-

lems which nature presents. In the statement of the rules ducing the

same effect

of induction it is assumed for the sake of simplicity that all —result as

the causes and all the effects under examination are separate of ™ree-

and independent facts, and that each cause is connected with

some one single effect. This, however, is not the case. Agiven effect may be produced by any one of several causes.

Various causes may contribute to the production of a single

effect. This is peculiarly important in reference to the

method of agreement. If that method is applied to a small

number of instances, its value is small. For instance, other

substances might produce soap by their combination besides

oil and alkali, say, for instance, that the combination of Aand B, and that of C and D would do so. Then, if there

were two experiments as follows :

(1) oil and alkali, A and B, produce soap.

(2) oil and alkaU, C and D, produce soap.

soap would be produced in each case, but whether by the

combination of oil and alkali, or by the combination of A and

B, or by that of C and D, or by the combination of oil, or of

alkali, with A, B, C or D, would be altogether uncertain.

A watch is stolen, from a place to which A, B, and C only

ment.

22 A Statement of the Principles of Indiution.

Chap. II.

^Yeaknessof the

method of

had access. Another watch is stolen from another place to

which A, D, and E only had access.

In each instance, A is one of three persons one of whom

must have stolen the watch, but this is consistent Avith it

having been stolen by any of the other persons mentioned.

This weakness of the method of agreement can be cured

only by so great a multiplication of instances as to make it

agreement highly improbable that any other antecedent than the one

present in every instance could have caused the effect present

in every instance.

ITor the statement of the theory of chances and its bearing

on the probability of events, I miist refer those who wish to

pursue the subject to the many works which have been written

upon it ; but its general validity wUl be inferred by every one

from the common observation of life. If it was certain that

either A or B, A or 0, A or D, and so forth, up to A and Z,

had committed one of a large number of successive thefts, of

the same kind, no one could doubt that A was the thief.

It is extremely difficult, in practice, to apply such a test as

this, and the test when applied is peculiarly liable to error, as

each separate alternative requires distinct proof. In the case

supposed, for instance, it would be necessary to ascertain

separately in each of the cases relied upon, first, that a theft

had been committed ; then, that one of two persons must have

committed it ; and lastly, that in each case the evidence bore

with equal weight upon each of them.

Intermix- The intermixture of effects and the interference of causes

effects and ^^'^ each other is a matter of much greater intricacy andinterfe- difficixlty.

It may take place in one of two ways, viz.

:

(1.) " In the one, which is exemplified by the joint opera-

tion of different forces in mechanics, the separate effects of all

the causes continue to be produced, but are compounded

together, and disappear in one total."

(2.) " In the other, illustrated by the case of chemical

action, the separate effects cease entirely, and are succeeded

rence of

causes with

each other.

Difficulties. 23

by phenomena altogether different, and governed by different Chap. ii.

laws."

In the second case the inductive methods already stated

may be applied, though it has difficulties of its own to whichI need not now refer.

In the first case, i. e., where an effect is not the result of

any one cause, but the result of several causes modifying

each other's operation, the results cease to be separately dis-

cernible. Some cancel each other. Others merge in one sum,

and in this case there is often an insurmountable difficulty in

tracing by observation any fixed relation whatever between

the causes and the effects. A body, for instance, is at rest

This may be the effect of the action of two opposite forces

exactly counteracting each other, but how are such causes to

be inferred from such an effect ?

A balloon ascends into the air. This appears, if it is treated

as an isolated phenomenon, to form an exception to the theory

of gravitation. It is in reality an illustration of that theory

though several concomitant facts and independent theories

must be understood and combined together before this can be

ascertained.

The difficulty of applying the inductive methods to such

cases arises from the fact that they assume the absence of the

state of things supposed. The subsequent and antecedent

phenomena must be assumed to be capable of specific and

separate observation before it can be asserted that a given

fact invariably follows another given fact, or that two sets of

possible causes resemble each other in every particular with

a single exception.

It is necessary for this reason to resort to the deductive Deductive

method, the nature of which is as follows : A general pro-™^ '° '

position established by induction is used as a premiss from

which consequences are drawn according to the rules of logic,

as to what must follow under particular circumstances. The

inference so drawn is compared with the facts observed, and

if the result observed agrees with the deduction from the in-

'24 A Statement of the Principles of Induction.

Illustra-

tion.

Chap. II, ductive premiss, the inference is that the phenomenon is

explained. The complete method, inductive and deductive,

thus involves three steps,

—

(1) Establishing the premiss by induction, or what, in

practice, comes to the same thing, by a previous

deduction resting ultimately upon induction;

(2) Eeasoning according to the rules of logic to a conclusion

;

(3) Verification of the conclusion by observation.

The whole process is illustrated by the discovery and

proof of the identity of the central force of the solar system

with the force of gravity as known on the earth's surface. The

steps in it were as follows :

—

(1) It was proved by deductions resting ultimately upon

inductions that the earth attracts the moon with a force vary-

ing inversely as the square of the distance.

This is the first step, the establishment of the premiss by

a process resting ultimately upon induction.

(2) The moon's distance from the earth, and the actual

amount of her deflexion from the tangent being known, it

was ascertained with what rapidity the earth's attraction •

would cause the moon to fall if she were no further off and no

more acted upon by extraneous forces than terrestrial bodies are.

This is the second step, the reasoning, regulated by the

rules of logic.

(3) Finally, this calculated velocity being compared with

the observed velocity with which all heavy bodies fall by

mere gravity towards the surface of the earth (sixteen feet in

the first second, forty-eight in the second, and so forth in the

ratio of the odd numbers), the two quantities are found to

agree.

This is the verification. The facts observed agree with tlie

facts calculated, therefore the true principle of calculation has

been taken.

This paraphrase, for it is no more, of Mr. Mill—is I hope,

Resemblances and Differences. 25

sufficient to show, in general, the nature of scientific inves- Chap. II.

tigation, and the manner in which it aims at framing true

propositions about matters of fact. It would be foreign to

the present purpose to follow the subject further. Enough

has been said to illustrate the general meaning of such words

as "proof" and "evidence" in their application to scien-

tific inquiry. Before inqiiiring into the application of these

principles to judicial investigations, it will be convenient

to compare the conditions under which judicial and scientific

investigations are carried on.

In some essential points they resemble each other. In- Judicial

quiries into matters of fact, of whatever kind and with what- tific inqui-

ever object, are, in all cases whatever, inquiries from the pa^d"—

'

known to the unknown, from our present perceptions or resem-

blances,

our present recollection (which is in itself a present per-

ception) of past perceptions, to what we . might perceive, or

might have perceived, if we now were, or formerly had been,

or hereafter should be, favourably situated for that purpose.

They proceed upon the supposition that there is a general

uniformity both in natural events and in human conduct

;

that all events are connected together as cause and effect

;

and that the process of applying this principle to particular

cases, and of specifying the manner in which it Avorks, though

a difficult and delicate operation, can be performed.

There are, however, several great differences between Differ-

inquiries which are commonly called scientific, inquiries that

is, into the order and course of nature, and inquiries into iso-

lated matters of fact, whether for judicial or historical pur-

poses, or for the purposes of everyday life. These differences

must be carefully observed before we can undertake with

much advantage the task of applying to the one subject the

principles which appear to be true in reference to the other.

The first difference is, that in reference to isolated events, Firstdiffer-

we can never, or very seldom, perform experiments, but are amou^ftof

tied down to a fixed number of relevant facts which can evidence.

never be increased.


Chap. II.

In scienti-

fic inqui-

ries unli-

mited.

In judicial

inquiries

limited.

The great object of physical science is to invent general

formulas (perhaps unfortunately called laws) which when as-

certained, sum vip and enable us to understand the present,

and predict the future course of nature. These laws are

ultimately deduced by the method already described from

individual facts j but any one fact of an infinite number will

Serve the purpose of a scientific inquirer as well as any other,

and in many, perhaps in most, cases, it is possible to arrange

facts for the purpose. In order, for instance, to ascertain the

force of terrestrial gravity, it was necessary to measure the

time occupied by different bodies in falling through given

spaces, aud every such observation was an isolated fact. If,

however, one experiment failed, or was interfered with, if an

observation was inaccurate, or if a disturbing cause, as, for

instance, the resistance of the atmosphere had not been

allowed for, nothing could be easier than to repeat the process;

and inferences drawn froiti any one set of experiments were

obviously as much to be trusted as inferences drawn from any

other set. Thus, with regard to inquiries into physical nature,

relevant facts can be multiplied to a practically unlimited

extent, and it may, by the way, be observed that the ease

with which this has been assumed in all ages, is a strong

aigument that the course of natiire does impress mankind

as being uniform under superficial variations. For many

centuries before the modern discoveries in astronomy were

made, the motions of the heavenly bodies were carefully ob-

served, and inferences as to their future course were founded

upou those observations. Such observations would have been

useless and unmeaning, but for the tacit assumption that what

tliey had done in times past, they would continue to do for

tlie future.

In inquiries into isolated events this great resource is not

available. Where the object is to decide what happened on

a particular occasion, we can hardly ever draw inferences of

any value from what happened on similar occasions, because

the groups of events which form the subject of historical or

Evidence limited. 27

judicial inquiry are so intricate that it can scarcely ever be Chap. II.

assumed that they will repeat, or that they have repeated

themselves. If we wish to know what happened two thou-

sand years ago, when specific quantities of oxygen and

hydrogen were combined, under given circumstances, we can

obtain complete certainty by repeating the experiment ; but

the whole course of human history must recur before we could

witness a second assassination of Julius Csesar.

"With reference to such events we are tied down inexorably it cannot

to a certain limited amount of evidence. We know so much creased.

of the assassination of Csesar as has been told us by the

historians, who are to us ultimate authorities, and we know

no more. Their testimony must be taken subject to aU the

deductions which experience shows to be necessary in re-

ceiving as true, statements made by historical writers on

subjects which interest their feelings, and upon the authority

of materials which are no longer extant and therefore can-

not be weighed or criticized. Unless by some unforeseen

accident, new materials on the subject should come to light, a

few pages of general history will for ever comprise the whole

amount of human knowledge upon this subject, and any

doubts about it, whether they arise from inherent improba-

bilities in the story itself, from differences of detail in the

different narratives, or from general considerations as to the

untrustworthy character of historians writing on hearsay,

and at a considerable distance of time from the events which

they relate, are, and must remain for ever, unsolved and

insoluble.

Besides this difference as to the quantity of evidence Object of

accessible in scientific and historical inquiries, there is a inquiries.

great difference as to the objects to which the inquiries are

directed. The object of inquiries into the course of nature

is two fold,—the satisfaction of a form of curiosity, which, to

those who feel it at all, is one of the most powerful, and

which happens also to be one of the most generally useful

elements of human nature; and the attainment of practical

28 A Statemnt of the Principles of Induction.

Chap. II. results of very various kinds. Neither of these ends can be

attained unless and until the problems stated by nature have

been solved : partially it may be, but at all events truly, as

far as the solution goes. On the other hand, there is no

pressing or immediate necessity for their solution. Every

scientific question is always open, and the answer to it may

be discovered after vain attempts to discover it have been

made for thousands of years, or an answer long accepted may

be rejected and replaced by a better answer after an equally

long period. In short, in scientific inquiries, absolute truth,

or as near an approach to it as can be made, is the one thing

needful, and is the constant object of pursuit. So long as any

part of his proof remains incomplete, so long as any one ascer-

tained fact does not fit into and exeniplify his theory, the

scientific inquirer neither is, nor ought to be, satisfied. Until he

has succeeded in excluding the possibility of error, he is bound

to the extent, at least, of that possibility, to suspend his

judgment.

Object of In judicial inquiries (I need not here notice historical

q"uiries.

'""iiiq.iiiries) the case is different. It is necessary for urgent

practical purposes to arrive at a decision which, after a definite

process has been gone through, becomes final and irreversible.

It is obvious that, under these circumstances, the patient

suspension of judgment, and the high standard of certainty

required by scientific inquirers, cannot be expected. Judicial

decisions must proceed upon imperfect materials, and must be

made at the risk of error.

Evidence Finally, inquirers into physical science have an additional

inquin^es''''advantage over those who conduct judicial inquiries, in the

trust- fact that the evidence before them, in so far as thev haveworthy.

. j n , -,

to depend upon oral evidence, is infinitely more trustworthy

than that which is brought forward in courts of justice. Thereasons of this are manifold. In the first place, the facts

which a scientific observer has to report do not affect his pas-

sions. In the second place, his evidence about them is nottaken at all unless his powers of observation have been mor0

Evidence of Witnesses. 29

or less trained and can be depended upon. In tlie third place, Chap. II.

lie can liardly know what will be the inference from the facts

which he observes until his observations liave been combined

with those of other persons, so that if he were otherwise dis-

posed to misstate them, he would not know what misstate-

ment would serve his purpose. In the fourth place, he knows

that his observations will be confronted with others, so that

if he is careless or inaccurate, and, a fortiori, if he should be

dishonest, he would be found out. In the fifth place, the

class of facts which he observes are, generally speaking, simple,

and he is usually provided with means specially arranged

for the purpose of securing accurate observatioj^, and a careful

record of its results.

The very opposite of all this is true as regards witnesses in Evidence

a court of justice. The facts to which they testify are, as aInquiries^

rule, facts in which they are more or less interested, and which '^s^ '™s'-

. . . .worthy.

in many cases excite their strongest passions to the highest

degree. The witnesses are very seldom trained to observe

any facts or to express themselves with accuracy upon any

subject. They know what the point at issue is, and how

their evidence bears upon it, so that they can shape it accor-

ding to the effect which they wish to produce. They are

generally so situated that a large part at least of what they say

is secure from contradiction, and the facts which they have

to observe being in most instances portions of human con-

duct, are so intricate that even with the best intention on the

part of the witness to speak the truth, he wiU generally be in-

accurate, and almost always incomplete, in his account of

what occurred.

So far it appears that our opportunities for investigating Advan-

and proving the existence of isolated facts are much inferior '^^|^^;°j

to our opportunities for investigating and proving the formulas over scieri-

which are commonly called the laws of nature. There is, ries.

however, something to be said on the other side. Though

the evidence available in judicial and historical inquiries is

often scanty, and is always fixed in amount, and though the

30 A Statement of the Principles of Indtiction.

Chap. II. facts which form the subject of such inquiries are far more

intricate than those which attract the inquirer into physical

nature; though the judge and the historian can derive no light

from experiments ; though, in a word, their apparatus for as-

certaining the truth is far inferior to that of which physical

inquirers dispose, the task which they have to perform is

proportionally easier and less ambitious. It is attended,

moreover, by some special facilities which are great helps in

performing it satisfactorily.

Maxims The question whether it is in the nature of things possible

more easily i^^i^ general formulas should ever be devised by the aid ofappreci- ° '

ated. which human conduct can be explained and predicted in the

short specific manner in which physical phenomena are

explained and predicted, has been the subject of great

discussion, and is not yet decided ; but no one doubts that

approximate rules have been framed which are sufficiently

precise to be of great service in estimating the probability

of particular events. Whether or not any proposition as

to human conduct can ever be enunciated, approaching in

generality and accuracy'to the proposition that the force of

gravity varies inversely as the square of the distance, no one

would feel disposed to deny that a recent possessor of stolen

property who does not explain his possession is probably either

the thief or a receiver; or that if a man refuses to produce a

document in his possession, the contents of the document are

probably unfavourable to him. In inquiries into isolated facts

for practical purposes, such rules as these are nearly as useful

as rules of greater generality and exactness, though they are

of little service when the object is to interpret a series of facts

either for practical or theoretical purposes. If, for instance,

the question is whether a particular person committed a crime

in the course of which he made use of water, knowledge of

the facts that there was a pump in his garden, and that water

can be drawn from a well by working the pump handle, is as

useful as the most perfect knowledge of hydrostatics. But if

the question were as to the means by which water could be

External Nature and Human Nature. 3

1

supplied for a house and field during the year, considerable Chap. Ii.

knowledge of the theory and practice of hydrostatics and

of various other subjects might be necessary, and the more

extensive the undertaking might be, the wider would be the

knowledge reijuired.

To this it must be added that the approximate rules which Their limi-

relate to human conduct are warranted principally by each ^oreeasily

man's own experience of what passes in his own mind, corro- perceived,

borated by his observation of the conduct of other persons,

which every one is obliged to interpret upon the hypothesis

that their mental processes are substantially similar to his

own. Experience appears to show that the results given by

this process are correct within narrower limits of error than

might have been supposed, though the limits are wide enough

to leave room for the exercise of a great amount of indi-

vidual skill and judgment.

This circumstance invests the rules relating to human

conduct with a very peculiar character. They are usually

expressed with little precision, and stand in need of many

exceptions and qualifications, but they are of greater practical

use than rough generalizations of the same kind about

physical nature, because the personal experience of those by

whom they are used readily supplies the qualifications and

exceptions which they require. Compare two such rules as

these :' heavy bodies fall to the ground,' ' the recent pos-

sessor of stolen goods is the thief The rise of a balloon into

the air would constitute an unexplained exception to the first

of these rules, which might throw doubt upon its truth, but

no one would be led to doubt the second by the fact that a

shopkeeper doing a large trade had in his till stolen coins

shortly after they had been stolen without having stolen them.

Every one would see at once that such a case formed one of the

many unstated exceptions to the rule. The reason is, that

we know external nature only by observation of a neutral,

unsympathetic kind, whereas every man knows more ofhuman

nature than any general rule on the subject can ever tell him.

tions.


Chap. II. To these considerations it must be added that to inquire

Judicial whether an isolated fact exists, is a far simpler problem than

aresim™llr to ascertain and prove the rule according to which facts of

tifk pro^' a given class happen. The inquiry falls within a smaUer

biems. compass. The process is generally deductive. The deductions

depend upon previous inductions, of which the truth is

generally recognised, and which (at least in judicial inquiries)

generally share in the advantage just noticed of appealing

directly to the personal experience and sympathy of the

judge. The deductions, too, are, as a rule, of various kinds

and so cross and check each other, and thus supply each

other's deficiencies.

lUustra- For instance, from one series of facts it may be inferred

that A had a strong motive to commit a crime, say the

murder of B. From an independent set of facts it may be

inferred that B died of poison, and from another independent

set of facts that A administered the poison of which B died.

The question is, whether A falls within the small class of

murderers by poison. If he does, various propositions about

him must be true, no two of which have any necessary con-

nection, except upon the hypothesis that he is a murderer.

In this case three such propositions are supposed to be true,

viz., (1) the death of B by poison, (2) the administration

of it by A, and (3) the motive for its administration.

Each separate proposition, as it is established, narrows the

number of possible hypotheses upon the subject. When it is

established that B died of poison, innumerable hypotheses

which would explain the fact of his death consistently with

A's innocence are excluded ; when it is proved that A ad-

ministered the poison of which B died, every supposition,

consistent with A's innocence, except those of accident, justi-

fication, and the like, are excluded ; when it is shown that Ahad a motive for administering the poison, the difficulty of

establishing any one of these hypotheses, e. g., accident, is

largely increased, and the number of suppositions consistent

with innocence is narrowed in a corresponding degree.

* Summary. 33

This suggests another remark of the highest importance in Chap. ii.

estimating the real weight ofjudicial inquiries. It is that such ?" judicial

inquiries in all civilized countries are, or at least ought to be, parties in-

tcrGstcd.conducted in such a manner as to give every person interested have op-

in the result the fuUest possible opportunity of establishingfj"!^™'"^^

the conclusion which he wishes to establish. In the illus- heai-d.

tration just given A would have at once the strongest motive

to explain the fact that he had administered the poison to Band every opportunity to do so. Hence if he failed to do it,

he would either be a murderer or else a member of that inii-

nitesimally small class of persons who, having a motive to

commit murder, and having administered poison to the person

whom they have a motive to murder, are unable to suggest

any probable reason for supposing that they did administer it

innocently.

The results of the foregoing inquiry may be shortly summed Summai-y, ,, of results.

up as ioUows :

—

r. The problem of discovering the truth in relation to

matters which are judicially investigated is a part of the

general problem of science,—the discovery of true propositions

as to matters of fact.

II. The general solution of this problem is contained in

the rules of induction and deduction stated by Mr. MiU, and

generally employed for the purpose of conducting and

testing the results of inquiries into physical nature.

III. By the due application of these rules facts may be

exhibited as standing towards each other in the relation of

cause and effect, and we are able to argue from the cause to

the effect and from the effect to the cause with a degree of

certainty and precision proportionate to the completeness

with which the relevant facts have been observed or are

accessible.

IV. The leading differences between judicial investigations

and inquiries into physical nature are as foUows :

—

1. In physical inquiries the number of relevant facts is

34 A Statement of the Principies ofInduction.

Chap. II. generally unlimited, and is capable of indefinite increase by

experiments.

In judicial investigations the number of relevant facts is

limited by circumstances, and is incapable of being increased.

2. Physical inquiries can be prolonged for any time thab

may be required in order to obtain full proof of the con-

clusion reached, and when a conclusion has been reached, it

is always liable to review if fresh facts are discovered, or if

any objection is made to the process by which it was

arrived at.

In judicial investigations it is necessary to arrive at a

definite result in a limited time ; and when that result is

arrived at, it is final and irreversible with exceptions too rare

to require notice.

3. In physical inquiries the relevant facts are usually

established by testimony open to no doubt, because they relate

to simple facts which do not affect the passions, which are

observed by trained observers who are exposed to detection if

they make mistakes, and who could not tell the effect of

misrepresentation, if they were disposed to be fraudulent.

In judicial inquiries the relevant facts are generally

complex. They affect the passions in the highest degree.

They are testified to by untrained observers who are generally

not open to contradiction, and are aware of the bearing of the

facts which they allege upon the conclusion to be established.

4. On the other hand, approximate generalizations are

more useful in judicial than they are in scientific inquiries,

because in the case of judicial inquiries every man's indi-

vidual experience supplies the qualifications and exceptions

necessary to adjust general rules to particular facts, which is

not the case in regard to scientific inquiries.

5. Judicial inquiries being limited in extent, the process

of reaching as good a conclusion as is to be got out of the

materials is far easier than the process of establishing a

scientific conclusion with complete certainty, though the

conclusion arrived at is less satisfactory.

Degrees of Probability. 35

It follows from what precedes that the utmost result that Chap. II.

can in any case be produced by iudicial evidence is a very Judical m-^ jT J d J quines

high degree of probability. Whether upon any subject what- usuallypro.

. .duce only a

ever more than this is possible—whether the highest form very high

of scientific proof amounts to more than an assertion that a pr^abiUty

certain order in natui-e has hitherto been observed to take

place, and that if that order continues to take place such

and such events will happen, are questions which have been

much discussed, but which lie beyond the sphere of the pre-

sent inquiry. However this may be, the reasons given above

show why courts of justice have to be contented with a

lower degree of probability than is rightly demanded in

scientific investigation. The highest probability at which a

court of justice can under ordinary circumstances arrive is

the probability that a "witness or a set of witnesses affirming

the existence of a fact which they say they perceived by

their own senses, and upon which they could not be mis-

taken, teU the truth. It is difficult to measure the value of

such a probability against those which the theories of physical

inquirers produce, nor would it serve any practical purpose

to attempt to do so. It is enough to say that the process

by which a comparatively low degree of probabihty is shown

to exist in the one case is identical in principle with that by

which a much higher degree of probability is shown to exist

in the other case.

The degrees of probability attainable in scientific and in Degrees of

judicial inquiries are infinite, and do not admit of exact ^mora'l'''

measurement or description. Cases might easily be men- "rtamty-

tioned in which the degree of probability obtained in either

is so high, that if there is any degree of knowledge higher in

kind than the knowledge of probabilities, it is impossible for

any practical purpose to distinguish between the two.

Whether any higher degree of assurance is conceivable than

that which may easily be obtained of the facts that the earth

revolves round the sun, and that Delhi was besieged and

taken by the English in 1857, is a question which does not

36 A Statement of the Principles ofInduction.

Chap. II. belong to this inquiry. Tor all practical purposes such con-

clusions as these may be described as absolutely certain.

From these down to the faintest guess about the inhabitants

of the stars, and the faintest suspicion that a particular

person has committed a crime, there is a descending scale

of probabilities which does not admit of any but a very

rough measurement for practical purposes. The only point

in it worth noticing is what is commonly called moral

certainty, and this means simply such a degree of probability

as a prudent man would act upon under the circumstances in

which he happens to be placed in reference to the matter of

which he is said to be morally certain.

Moral cer- What Constitutes moral certainty is thus a question oftainty is u . .

question of prudencB, and not a question of calculation. It is commonlypni ence.

^^^^ j^ reference to judicial inquiries; that in criminal cases

guilt ought to be proved " beyond all reasonable doubt," and

that ia civil cases the decision ought to be in favour of the

side which is most probably right. To the latter part of

ttiis rule there is no objection, though it should be added that

it cannot be applied absolutely without reserve. For instance,

a civU. case in which character is at stake partakes more or less

of the nature of a criminal proceeding ; but the first part of the

rule means nothing more than that in most cases the punish-

ment of an innocent man is a great evil, and ought to be care-

fully avoided ; but that, on the other hand, it is often impos-

sible to eliminate an appreciable though undefinable degree of

uncertainty from the decision that a man is guilty. The

danger of punishing the innocent is marked by the use of the

expression " no doubt," the necessity of running some degree

of risk of doing so in certain cases is intimated by the word" reasonable." The question, what sort of doubt is " reason-

able " in criminal cases is a question of prudence. Hardly any

case ever occurs in which it is not possible for an ingenious

person to suggest hypotheses consistent with the prisoner's

innocence. The hypothesis of falsehood on the part of the

witnesses can never be said to be more than highly improbable.

Mr. MiWs Principle. 37

Though it is impossible to invent any rule by which Chap. ii.

different probabilities can be precisely valued, it is always Principle

possible to say whether or not they fulfil the conditions of tingproba-

what Mr. ilill describes as the Method of Difference; and if ^at'of Mr.

not, how nearly they approach to fulfiHing it. The principle isthod 'ofdif-

precisely the same in all cases, however complicated or ference.

however simple, and whether the nature of the inquiry is

scientific or judicial. In all cases the known facts mustbe arranged and classified ^\-ith reference to the different

hypotheses, or unknown or suspected facts, by which the

existence of the known facts can be accounted for. If every

hypothesis except one is inconsistent with one or more of the

known facts, that one hypothesis is proved. If more than one

hypothesisis consistent with the known facts, but one only is

reasonably probable—that is to say,'if one only is in accordance

with the common course of events, that one in judicial inquiries

may be said to be proved "beyond all reasonable doubt."

The word " reasonable " in this sentence denotes a fluctuating

and uncertain quantity of probability (if the expression may be

allowed), and shows that the lUtimate question in judicial pro-

ceedings is and must be in most cases a question of prudence.

Let the question be whether A did a certain act ; the cir- lUustra-

cumstances are such that the act must have been done ''°""

by somebody, but it can have been done only by A or

by B. If A and B are equally likely to have done the

act, the matter cannot be carried further, and the question

"Who did it ? must remain undecided. But if the act must

have been done by one person, if it required great physical

strength, and if A is an exceedingly powerful man and B a

child, it may be said to be proved that B,did it. If A is _/"/. f

stronger than B, but the disproportion between their strength

is less, it is probable that A did it, but not impossible that

B may have done it, and so on. In such a case as this a

nearer approach than usual to a distinct measurement of the

probability is possible, but no complete and definite statement

on the subject can be made.

38 A Statemeni of the Principles ofInduction.

Chap. II. Such being the general nature of the object towards which

^ufrie'fin"-'Jii'iicial inquiries are directed, and the general nature of the

volve two process by which they are carried on, it will be well to exa-

inferences, mine the chief forms of that process somewhat more

particularly.

It will be found upon examination that the inferences

employed in judicial inquiries fall under two heads :

—

(1) Inferences from an assertion, whether oral or docu-

mentary, to the truth of the matter asserted.

(2) Inferences from facts which, upon the strength of such

assertions, are believed to exist, to facts of which the existence

has not been so asserted.

For the sake of simplicity, I do not here distinguish various

subordinate classes of inferences, such as inferences from the

manner in which assertions are made, from silence, from the

absence of assertion, and from the conduct of the parties.

They may be regarded as so many forms of assertion, and

may therefore be classed under the general head of inferences

from an assertion to the truth of the matter asserted.

Direct and This is the distinction usually expressed by saying that aU

stantiai evidence is either direct or circumstantial I avoid the

use of this expression, partly because, as I have already ob-

served, direct evidence means direct assertion, whereas cir-

cumstantial evidence means a fact on which an inference is to

be founded, and partly for the more important reason that

the use of the expression favours an unfounded notion that

the principles on which the two classes of inferences depend

are different, and that they have different degrees of cogency,

which admit of comparison. The truth is that each inference

depends upon precisely the same general theory, though

somewhat different considerations apply to the investigation

of cases in which the facts testified to are many, and to cases

in which the facts testified to are few.

The general theory has been a;lready stated. In every case

the question is, are the known facts inconsistent with any

other than the conclusion suggested ? The known facts in

evidence.

Direct and Circumstantial Evidence. 39

every case whatever are the evidence in the narrower sense of Chap. II.

the word. The judge hears with his own ears the statements

of the witnesses and sees with his own eyes the documents

produced in court. His task is to infer, from what he thus

sees and hears, the existence of facts which he neither sees

nor hears.

Let the question be whether a will was executed. Three Illustra-

witnesses, entirely above suspicion, come and testify that

they witnessed its execution. These assertions are facts

which the judge hears for himself. Now there are three

possible suppositions, and no more, which the judge has to

consider in proceeding from the known fact, the assertion of

the witnesses that they saw the will executed, to the fact to

be proved—the actual execution of the will :

—

(1) The witnesses may be speaking the truth.

(2) The witnesses may be mistaken.

(3) The witnesses may be telling a falsehood.

The circumstances may be such as to render suppositions

(2) and (3) improbable in the highest degree, and generally

speaking they would be so. In such a case the first hypo-

thesis, i. 6., that the will really was executed as alleged, would

be proved. The facts before the judge would be inconsistent

with any other reasonable hypothesis except that of the

execution of the will. This would be commonly called a

case of direct evidence.

Let the question be whether A committed a crime. The

facts which the judge actually knows are that certain wit-

nesses made before him a variety of statements which he

believes to be true. The result of these statements is to

establish certain facts which show that either A or B or C

must have committed the crime, and that neither B nor

did commit it. In this case the facts before the judge would

be inconsistent with any other reasonable hypothesis except

that A committed the crime. This would be commonly

called a case of circumstantial evidence; yet it is obvious

that the principle on which the investigation proceeds as in the

4-0 A Statement of the Principles of Induction.

Chap. II. last case is identically the same. The only difference is in

the number of inferences, but no new principle is introduced.

Identity of It is also clear that each case is identical in principle with

with Mr. tl^e method of difference as explained by Mr. Mill.

tHeonr^^- Mill's illustration of the application of that method to

the motions of the planets is as follows :—The planets with a

central force give areas proportional to the times. The planets

without a central force give a different set of motions ; but

areas proportional to the times are observed. Therefore there

is a central force.

Similarly in the cases suggested. The assertions of the

witnesses give the execution of a will, *. e., no other cause

can account for those assertions having been made. If the

will had not been executed those assertions would not have

been made. But the assertions were made. Therefore the

will was executed.

Though inferences from an assertion to its truth, and

inferences from facts taken as true to other facts not asserted

to be true, rest upon the same principle, each inference has its

peculiarities.

Inference The inference from the assertion to the truth of the matterfrom asser-

.

tion to asserted is iisually regarded as an easy matter, callmg formatter as- T,i.i i

serted.little remark.

Though in particular cases it is really easy, and though in

a certain sense it is always easy, to deal with, to deal with

it rightly, is by far the most difficult task which falls to the

lot of a judge and miscarriages of justice are almost in-

variably caused by dealihg with it wrongly. This requires

full explanation.

To infer from an assertion the truth of the matter asserted,

is in one sense the easiest thing in the world. The intellectual

process consists of only one step, and that is a step which

,

gives no trouble, and is taken in most cases unconsciously.

But to draw the inference in those cases only in which it is

true is a matter of the utmost difficulty. If we were able to

affirm the proposition, " All men upon all occasions speak the

Inferencefrofn Assertion. 41

truth/' the remaining propositions,—" This man says so and Chap. II.

so," " Therefore it is true," would present no difficulty. The

major premiss, however, is subject to wide exceptions, which

are not forced upon the judge's attention. Moreover, if they

were, the judge has often no means of ascertaining whether

or not, and to what extent they apply to any particular case.

How is it possible to tell how far the powers of observa- its difficul-

tion and memory of a man seen once for a few minutes

enable him, and how far the innumerable motives by any

one or more of which he may be actuated dispose him, to tell

the truth upon the matter on which he testifies ? Cross-

examination supplies a test to a certain extent, but those who

have seen most of its application wiE. be disposed to trust it

least as a proof that a man not shaken by it ought to be

believed. A cool, steady liar who happens not to be open to

contradiction will baffle the most skilful cross-examiner in

the absence of accidents, which are not so common in prac-

tice as persons who take their notions on the subject from

anecdotes or fiction would suppose.

No rules of evidence which the legislator can enact can Cannot be

perceptibly affect this difficulty. Judges must deal with it^^f^'^g'^f^^

as well as they can by the use of their natural faculties and evidence,

acquired experience, and the miscarriages of justice in which

they wiU be involved by reason of it must be set down to

the imperfection of our means of arriving at truth. The

natural and acquired shrewdness and experience by which an

observant man forms an opinion as to whether a witness is or

is not lying, is by far the most important of all a judge's

qualifications, infinitely more important than any acquaintance

with law pr with rules of evidence. No trial ever occurs in

which the exercise of this faculty is not required ; but it is

only in exceptional cases that questions arise which present

any legal difficulty, or in which it is necessary to exercise

any particular ingenuity in putting together the different facts

which the evidence tends to establish. This pre-eminently

important power for a judge is not to be learnt out of books.


Chap. II. In so far as it can be acquired at all, it is to be acquired

only by experience, for the acquisition of which the position

of a judge is by no means peculiarly favourable. People

come before him with their cases ready prepared, and give

the evidence which they have determined to give. Unless

he knows them in their unrestrained and famuiar moments,

he will have great diificulty in finding any good reason for

believing one man rather than another. The rules of evidence

may provide tests, the value of which has been proved by

long experience, by which judges may be satisfied that the

quality of the materials upon which their judgments are to

proceed is not open to certain obvious objections ; but they

do not profess to enable the judges to know whether or not

a particular witness tells the truth or what inference is to be

drawn from a particular fact. The correctness with which

this is done must depend upon the natural sagacity, the

logical power, and the practical experience of the judge,, not

upon his acquaintance with the law of evidence.

Grounds The grounds for believing or disbelieving particular state-

inganddis- ments made by particular people under particular circum-

behevinga gtanccs may be brought under three heads,—those whichwitness. °

Power. affect the power of the witness to speak the truth; those

which affect his wiU to do so ; and those which arise from

the nature of the statement itself and from surrounding cir-

cumstances. A man's power to speak the truth depends upon

his knowledge and his power of expression. His knowledge

depends partly on his accuracy in observation, partly on his

memory, partly on his presence of mind ; his power of ex-

pression depends upon an infinite number of circumstances,

and varies in relation to the subject of which he hag to speak.

•yviu. A man's will to speak the truth depends upon his educa-

tion, his character, his courage, his sense of duty, his relation

to the particular facts as to which he is to testify, his humour

for the moment, and a thousand other circumstances, as to the

presence or absence of which in any particular case it is often

difficult to form a true opinion.

Probability a Poor Reasonfor Belief. 43

The third set of reasons are those which depend upon the Chap. ii.

probability of the statement.

Many discussions have taken place on the effect of the Pipba-

improbability of a statement upon its credibility in cases stateni°ent.

which can never fall under judicial consideration. It is un-

necessary to enter upon that subject here. Looking at the

matter merely in relation to judicial inquiries, it is sufacient

to observe that whilst the improbability of a statement is

always a reason, and may be, in practice, a conclusive reason

for disbelieviag it, its probability is a poor reason for believing

it if it rests upon uncorroborated testimony. Probable false-

hoods are those which an artful liar naturally tells ; and the

fact that a good opportunity for telling such a falsehood

occurs is the commonest of all reasons for its being told.

Upon the whole, it must be admitted that little that is Expe-

really serviceable can be said upon the inference from anfjf'"^ni'^

assertion to the truth of the matter asserted. The observations guide on

of which the matter admits are either generalities too vague

to be of much practical use, or they are so narrow and special

that they can be learnt only by personal observation and

practical experience. Such observations are seldom, if ever

thrown by those who make them into the form of express

propositions. Indeed, for obvious reasons, it would be impos-

sible to do so. The most acute observer would never be able

to catalogue the tones of voice, the passing shades of expression

or the unconscious gestures which he had learnt to associate

with falsehood ; and if he did, his observations would probably

be of little use to others. JEvery one must learn matters of

this sort for himself, and though no sort of knowledge is so

important to a judge, no rules can be laid down for its

acquisition.*

* I may give a few anecdotes which have no particular value in

themselves, hut which show what I mean. " I always used to look

at the witnesses' toes when I was cross-examining them," said a

friend of mine who had practised at the bar in Ceylon. " As soon as

they began to lie they always fidgeted about with them." I knew a


Chap. II, If the opinion here advanced appears strange, I would

tion^''^'^"™"^ite attention to the following illustration :—Is there any

class of cases in which it is, in practice, so difficult to come

to a satisfactory decision as those which depend upon the

explicit, direct testimony of a single witness uncorroborated,

and, by the nature of the case, incapable of corroboration ?

For instance, a man and a woman are travelling alone in a

railway carriage. The train stops at a station, and the womancharges the man with indecent conduct, which he denies.

Nothing particular is known about the character or previous

history of either. The woman is not betrayed on cross-exami-

nation into any inconsistency. There are no cases in which

the difficulty of arriving at a satisfactory decision is anything

like so great. It is easy to decide them as it is easy to make

a bet, but it is easier to deal satisfactorily with the most com-

plicated and lengthy chain of inference.

The uncertainty of inferences from an assertion to the

truth of the matter asserted may be shown by stating them

logically. They may be considered as being the conclusions

of syllogisms in this form :

—

Judge who formed the opinion that a letter had been forged because

the expression " that woman " which it contained appeared to him

to be one which a woman and not a man would use, and the question

was whether the letter in question had been forged by a woman. In

the Life of Lord Keeper Guildford it is said that he always acted

on the principle that a man was to be believed in what he said when

he was in a passion. The commonplaces about the evidence of police-

men, children, women, and the natives of particular countries belong

to this subject. The only remark I feel inclined to add to what is

commonly said on it is that, according to my observation, the power

to tell the truth, which implies accurate observation, knowledge of

the relative importance of facts, and power of description, properly

proportioned to each other, is much less common than people usually

suppose it to be. Ic is extremely difficult for an untrained person not

to mix up inference and assertion. It is also difficult for such a person

to distinguish between what they themselves saw and heard and what

they were told by others, unless their attention is specially directed

to the distinction.

Inferencefrom Broad Facts. 45

All men situated in such and such a manner speak the chap. ii.

truth or speak falsely (as the case may be).

A B, situated in such and such a manner, says so and so.

Therefore, in saying so and so, he speaks truly or falsely

(as the case may be).

This is a deduction resting on a previous induction, and it

is obvious that the induction which furnishes the major

premiss must always be exceedingly imperfect, and that the

truth of the miaor premiss which is essential to the deduction

is always more or less conjectural.

In many cases the defects of inferences of the- first kind Inference

may be incidentally remedied by inferences of the second proved to

kind, namely, inferences from facts which are asserted, and,otherwise

on the ground of such assertion, believed by the court to proved,

exist, to facts not asserted to exist ; and these I now proceed

to examine.

I have observed that the inference from an assertion to the inference

from asser-truth 01 the matter asserted often is as easy as it always tion to

appears to be. In very many instances, which it is much easier thnes^"™^"

to recognise when they occur than to reduce to rule, a direct really easy.

assertion, even by a single witness of whom little is known, is

entitled to great weight. Suppose, for instance, that the matter

asserted is of a character indifferent in itself, and upon which

the witness is, or for aught he can tell may be, open to con-

tradiction. A single assertion of this sort may outweigh a

mass of artfully combined falsehood. Suppose, for iastance,

that a number of witnesses have been called to prove an

aim, and that they allege that on a given day they were

all present together with the person on behalf of whom the

aim is to be proved at a fair held at a certain place. If the

magistrate of the district, whose duty it was to superintend

the fair, were to depose that the fair did not begin to be held

tiU a day subsequent to the one in question, no one would

doubt that the witnesses had conspired together to give false

evidence by the familiar trick of changing the day. In this

case one direct assertion would outweigh many direct asser-


Chap. II. tions. Why ? Because the magistrate of the district would

be a man of character and position ; because he would (we

must assume) be quite indifferent to the particular case in

issue ; because he would be deposing to a fact of which it

would be his official duty to be cognizant, and on which he

could hardly be mistaken ; and lastly, because the feet would

be known to a vast number of people, and he would be open

to contradiction, detection, and ruin if he spoke falsely.

Change these circumstances, and the equally explicit testi-

mony of the very same man might be worthless. Suppose,

for instance, that he was asked whether he had committed

adultery ? His denial would carry hardly any weight in any

conceivable case, inasmuch as the charge is one which a guilty

man would always deny, and an innocent man could do no

more. In other words, since the course of conduct supposed

is one which a man would certainly take whether he were

innocent or not, the fact of his taking it would afford no

criterion as to his guilt or innocence.

Now in almost all judicial proceedings a certain number of

facts are established by direct assertions made under such

circumstances that no one would seriously doubt their truth.

Others are rendered probable in various degrees, and thus the

judge is furnished with facts which he may use as a basis for

his inferences as to the existence of other facts which are

either not asserted to exist or are asserted to exist, by unsatis-

factory witnesses.

These inferences are generally considered to be more difficult

to draw than the inference from an assertion to the matter

asserted. In fact, it is far easier to combine materials sup-

posed to be sound, than to ascertain that they are sound. In

the one case no rules for the judge's guidance can be laid

down. No process is gone through, the correctness of which

can afterwards be independently tested. The judge has

nothing to trust to but his own natural and acquired sagacity.

In the other case all that is required is to go through a

process with which, as J\Ir. Huxley remarks, every one has a

Such in-

ferences

compara-tively easy,

Converging Probabilities. 47

general superficial acquaintance tested by every-day practice. Chap. ii.

and the theory of which it is easy to understand and interesting

to follow out and apply.

The facts supposed to be proved must ultimately fulfil Facts must

the conditions of the method of difference, but they may be method ofcombined by any of the recognised logical methods, or by difterence.

a combination of them aU. The object, indeed, at which

they are aU directed is the same, though they reach it

by different roads. A few illustrations will make this plain.

The question is, whether A has embezzled a small sum

of money, say a particular rupee which he received on ac-

count of his employer, and did not enter in a book in

which he ought to have entered it. His defence is. that the

omission to make the entry was accidental. The account-

book is examined, and it is found that in a long series of

instances omissions of small sums have been made, each of

which omissions is in A's favour. This, in the absence of

explanation, would leave no reasonable doubt of A's guUt in

each and every case. It would be practically impossible to

account for such facts except upon the assumption of

systematic fraud. Logically, this is aniustance of the Method

of Agreement applied to so great a number of instances as to

exclude the operation of chance. When, however, this is

done, the Method of Agreement becomes a case of the Method

of Difference.

The well-known cases in which guilt is inferred from a Conver-

number of separate, independent, and, so to speak, convergingblbfii^e°'

probabilities, may be regarded as an illustration of the same

principle. Their general type is as follows :

—

B was murdered by some one.

Whoever murdered B had a motive for his murder.

A had a motive for murdering B.

Whoever murdered B had an opportunity for murdering B.

A had an opportunity for murdering B.

Whoever murdered B made preparations for the murder

ofB.


Illustra-

tion.

Chap. II. A acted in a manner which might amount to a preparation

for murdering B.

In each of these instances, which might of course be inde-

finitely multiplied, one item of agreement is established

between the ascertained fact that B was murdered and the

hypothesis that A murdered him; and it does sometimes

happen that these coincidences may be multiplied to such an

extent and may be of such a character as to exclude the

supposition of chance, and justify the inference that A was

guilty.* I'he case, however, is a rare one, and there is always

a great risk of injustice unless the facts proved go beyond

the mere multiplication of circumstances separately indi-

cating guilt, and amount to a substantial exclusion of every

reasonable possibility of innocence.

The celebrated passage in Lord Macaulay's Essays in

which he seeks to prove that Sir PhUip Francis was the

author of Junius 's letters, is an instance of an argument of

this kind. The letters, he says, show that five facts can

be predicated of Junius, whoever he may have been. But

these five facts may also be predicated of Sir Philip Francis

and of no one else. Whether any part of this argument

can in fact be sustained, is a question to which it would be

impertinent to refer here, but that the method on which it

proceeds is legitimate there can be no doubt.

Rule as to The cases in which it is most probable that injustice'

will be done by the application of the method of agree-

ment to judicial inquiries are those in which the existence

of the principal fact has to be inferred from circumstances

pointing to it. This is the foundation of the well-known rule

that the corpus delicti should not in general in criminal

cases be inferred from other facts, but should be proved

independently. It has been sometimes narrowed to the

proposition that no one should be convicted of murder

unless the body of the murdered person has been discovered.

corpusdelicti.

* Ste TUchaiclson's Case, p. 68.

Rule as to Corpus Delicti. 49

Neither of these rules is more than a rough and partial Chap. il.

application of the general principle stated above. If the

circumstances are such as to make it morally certain (within

the definition given ahove) that a crime has been committed,

the inference that it was so committed is as safe as any other

such inference.

The captain of a ship, a thousand miles from any land, and lllustra-

with no other vessel in sight, is seen to run into his cabin,

pursued by several mutinous sailors. The noise of a struggle

and a splash are heard. The sailors soon afterwards come

out of the cabin and take the command of the vessel. The

cabin windows are open. The cabin is in confusion, and the

captain is never seen or heard of again.

A person looks at his watch and returns it to his pocket.

Immediately afterwards a man comes past, and makes a

snatch at the watch, which disappears. The man being

pursued, runs away and swims across a river ; he is arrested

on the other side. He has no watch in his possession, and

the watch is never found.

In these cases it is morally certain that murder and theft

respectively were committed, though in the first case the

body, and in the second the watch is not producible.

Cases, however, do undoubtedly occur in which the infer- Existency

• -1 71 .of corpus

ence that a crmie has been committed at all is a mistake, delicti

They may often be resolved into a case of begging the ques- wrongiT^

tion. The process is this : suspicion that a crime has been '"^^="6^.

committed is excited, and upon inquiry a number of circum-

stances are discovered which if it is assumed that a crime

has been committed are suspicious, but which are not

suspicious unless that assumption is made.

A ship is cast away under such circumstances that her

loss may be accounted for either by fraud or by accident.

The captain is tried for making away with her. Avariety of circumstances exist which would indicate prepara-

tion aud expectation on his part if the ship really was made

away with, but which would justify no suspicion at all if she

E


Summaryof conclu-

sions.

Chap. II. was not. It is manifestly illogical first to regard the

antecedent circumstances as suspicious, because the loss of

the ship is assumed to be fraudulent, and next to infer that

the ship was fraudulently destroyed from the suspicious

character of the antecedent circumstances. This, however, is

a fallacy of very common occurrence, both in judicial

proceedings and in common life.*

The modes in which facts may be so combined as to excludfe

every hypothesis other than the one which it is intended to

establish are very numerous, and are, I think, better learnt

from specific illustrations and from actual practice than from

abstract theories. One of the objects of the illustrations

given in the next chapter is to enable students to understand

this matter.

The result of the foregoing inquiries may be summed up as

follows :

—

I. In judicial inquiries the facts which form the materials

for the decision of the court are the facts that certain

persons assert certain things under certain circumstances.

These facts the judge hears with his own ears. He also sees

with his own eyes documents and other things respecting

which he hears certain assertions.

II. His task is to infer—

(1) From what he himself hears and sees the existence of

the facts asserted to exist

;

(2) From the facts which on the strength of such assertions

he believes to exist other facts which are not so asserted

to exist.

III. Each of these inferences is an inference from the

effect to the cause, and each ought to conform to the

Method of Difference; that is to say, the circumstances in

each case should be such that the effect is inconsistent

* An illustration of this form of error occurred in the case of E.

vs. Steward and two others, who were convicted at Singapore in 1867

for casting away the Schooner JBrm, and subsequently received a

free pardon on the ground of their innocence.

Degrees of Probability. 5

1

(subject to the limitations contained in the following Chap. ll.

paragraphs) with the existence of any other cause for it

than the cause of which the existence is proposed to be

proved.

IV. The highest result of judicial investigation must gene-

rally be, for the reasons already given, to show that certain

conclusions are more or less probable.

V. The question—what degree of probability is it

necessary to show, in order to warrant a judicial decision

in a given case, is a question not of logic but of prudence

and is identical with the question, " What risk of error is it

wise to run, regard being had to the consequences of error in

either direction ?

"

VI. This degree of probability varies in different cases to an

extent which cannot be strictly defined, but wherever it

exists it may be called moral certainty.

52 The Theory of Relevancy, with Illustrations.

CHAPTEE III.

THE THEOET OF EELEVANCT, WITH ILLUSTEATIONS.

Chap. III. ^ intelligence of sufficient capacity might perhaps be

means^"*^^ atlc to conceive of aU events as standing to each other in the

connectionrelation of cause and effect ; and though the most powerful

as cause of human minds are unequal to efforts which fall infinitely

short of this, it is possible not only to trace the connection

between cause and effect, both in regard to human conduct

and in regard to inanimate matter, to very considerable

lengths, but to see that numerous events are connected

together, although the precise nature of the links which con-

nect them may not be open to observation. The connection

may be traced in either direction, from effect to cause or from

cause to effect; and if these two words were taken in

their widest acceptation it would be correct to say that

when any theory has been formed which alleges the exist-

ence of any fact, all facts are relevant which, if that theory

was true, would stand to the fact alleged to exist either in

the relation of cause or in the relation of effect.

Objections. It may be said that this theory would extend the limits of

relevancy beyond all reasonable bounds, inasmuch as all events

whatever are or may be more or less remotely connected by the

universal chain of cause and effect, so that the theory of

gravitation would upon this principle be relevant wherever

one of the facts in issue involved the falling of an object to

the ground.

Answer. The answer to this objection is, that wide, general causes,

which apply to all occurrences, are, in most cases, admitted,

and do not require proof; but no doubt if their application

to the matter in question were doubtful or were misunder-

Cause and Effect. 5 3

stood, it might be necessary to investigate them. For instance, Chap. hi.

suppose that, in an action for infringing a patent, the defence

set up was that the patent was invalid, because the invention

had been anticipated by some one who preceded the patentee.

The issue might be whether an earlier machine was substan-

tially the same as the patentee's machine. AU the facts,

therefore, which went to make up each machine would be

facts ia issue. But each machine would be constructed with

reference to the general formulae caUed laws of nature, and

thus the existence of an alleged law of nature might well

become, not merely relevant, but a fact in issue. If,

the first iaventor of barometers had taken out a patent,

and had had to defend its validity, the variation of atmos-

pheric pressure, according to the height of a column of air, and

the fact that air has weight, might have been facts in issue.

With regard to the remark that all events are connected Traceable

together more or less remotely as cause and effect, it is to be of causes

observed that though this is or may be true, it is equally °" effects... .

^ ./ narrow.

true that the limit withia which the influence of causes upon

effects can be perceived is generally very narrow. A knife

is used to commit a murder, and it is notched and stained

with blood ia the process. The knife is carefully washed, the

water is thrown away, and the notch in the blade is ground

out. It is obvious that, unless each link in this chain of

cause and effect could be separately proved, it would be

impossible to trace the connection between the knife cleaned

and ground and the purpose for which it had been used. Onthe other hand, if the first step—the fact that the knife was

bloody at a given time and place—was proved, there would

be no use in inc[uiring into the further effects produced by

that fact, such as the staining of the water in which it was

washed, the infinitesimal effects produced on the river into

which the water was thrown, and so forth.

The rule, therefore, that facts may be regarded as relevant ^"1^ ^^'?' ° cause and

which can be shown to stand either in the relation of cause or effects true

in the relation of effect to the fact to which they are said to

54 The Theory af Relevancy^ with Illustrations..

Chap. III. be relevant, may be accepted as true, subject to the caution

subject to ^^^ ^jjgjj ^^ inference is to be founded upon the existence ofcaution '

. . ,

that every gucb a connection, every step by which the connection is made

connection out must either be proved, or be so probable under the circum-

made^outstances of the case that it may be presumed without proof.

Footmarks are found near the scene of a crime. The circum-

lllustra- stances are such that they may be presumed to be the foot-

*'°°'marks made by the criminal. These marks correspond

precisely with a pair of shoes found on the feet of the accused.

The presumption founded upon common experience, though

its force may vary indefinitely, is that no two pairs of shoes

would make precisely the same marks. It may further be

presumed, though this presumption is by no means conclusive,

that shoes were worn by their owner on a given occasion.

Here the steps are as follows :

—

(1) The person who committed the crime probably

made those marks by pressing the shoes which he

wore on the ground.

(2) The person who committed the crime probably wore

his own shoes.

(3) The shoes so pressed were probably these shoes.

(4) These shoes are A B's shoes.

Therefore A B probably made those marks with those shoes.

Therefore A B probably committed the crime.

These facts may be exhibited in the relation of cause and

effect thus :

—

(1) A's owning the shoes was the cause of his wearing

them.

(2) His wearing them at a given place and time caused

the marks.

(3) The marks were caused by the flight of the

criminal.

(4) The flight of the criminal was caused by the com-

mission of the crime.

(5) Therefore the marks were caused by the flight of Athe criminal, after committing the crime.

Obscurity of Definition. 55

Though this mode of describing relevancy might he correct, Chap. hi.

it would not be readily understood. For instance, it might obscurity

be asked, how is an alibi relevant under this definition ? Thedefinition

answer is, that a man's absence from a given place at a given

time is a cause of his not having done a given act at that

place and time. This mode of using language would, however,

be obscui-e, and it was for this reason that relevancy was very

fully defined in the Evidence Act (ss. 6—11, both iaclusive)

These sections enumerate specifically the different instances of

the connection between cause and effect which occur most

frequently iu judicial proceedings. They are designedly

worded very widely, and in such a way as to overlap each

other. Thus a motive for a fact in issue (s. 8) is part of its

cause (s. 7). SubsecLuent conduct influenced by it (s. 8) is

part of its effect (s. 7). Facts relevant under s. 11 would,

in most cases, be relevant under other sections. The object

of drawing the Act in this manner was that the general ground

on which facts are relevant might be stated in as many

and as popular forms as possible, so that if a fact is relevant,

its relevancy may be easily ascertained.

These sections are by far the most important, as they are Import-

the most original part of the Evidence Act, as they af&rm their see-

positively what facts may be proved, whereas the English law *'™^'

assumes this to be known, and merely declares negatively that

certain facts shall not be proved.

Important as these sections are for puposes of study, and

in order to make the whole body of law to which they belong

easily intelligible to students and practitioners not trained in

English courts, they are not likely to give rise to litigation or to

nice distinctions. The reason is that s. 167 of the Evidence Act

which was formerly s. 57 of II. of 1855, renders it practically

a matter of little importance whether evidence of a particular

fact is admitted or not. The extreme intricacy and minuteness

of the law of England on this subject is principally due to

the fact that the improper admission or rejection of a single

question and answer would give a right to a new trial in

56 The Theory of Relevancy^ with Illustrations.

a civil case, and -would upon a crimiual trial be sufficient

ground for the quashing of a conviction before the Court

for Crown Cases reserved.

The improper admission or rejection of evidence in India

has no effect at all unless the court thinks that the evidence

improperly dealt with either turned or ought to have turned

the scale. A judge, moreover, if he doubts as to the relevancy

of a fact suggested, can, if he thinks it wHl lead to any-

thing relevant, ask about it himself under s. 165.

Illustra- In order to exhibit fuUy the meaning of these sections,

to show how the Act was intended to be worked, and to

furnish students with models by which they may be guided

in the discharge of the most important of their duties,

abstracts are appended of the evidence given at the fol-

lowing remarkable trials :

—

1. K. V. Donellan.

2. E.i;.Belany.

3. E. y. Eiehardson.

4. E.«. Patch.

5. E. V. Palmer.

To every fact proved in each of these cases, the most in-

tricate that I could discover, a note is attached, showing under

what section of the Evidence Act it would be relevant.

I may observe upon these cases that the general princi-

ples of evidence are, perhaps, more clearly displayed in trials

for murder, than in any others. Murders are usually con-

cealed with as much care as possible ; and, on the other hand,

they must, from the nature of the case, leave traces behind

them which render it possible to apply the argument from

effects to causes with greater force in these than in most

other cases. Moreover, as they involve capital punishment

and excite peculiar attention, the evidence is generally in-

vestigated with special care. There are accordingly few cases

which show so distinctly the sort of connection between

fact and fact, which makes the existence of one fact a good

ground for inferring the existence of another.

Case of R. v. Donellan. 57

I.

Case of E. v. Donellan *

John Donellan, Esq., was tried at Warwick Spring Assizes,

1781, before Mr. Justice BuUer, for the murder of Sir Theo-

dosius Broughton, his brother-in-law, a young man of for-

tune, twenty years of age,' who, up to the moment of his

death, had been in good health and spirits, with the excep-

tion of a trifling ailment, for which he occasionally took a

laxative draught.'^ Mrs. Donellan was the sister of the

deceased, and, together with Lady Broughton, his mother, lived

with him at Lawford Hall, the family mansion.'

In the event of Sir T. Broughton's death, unmarried and

without issue, the greater part of his fortune would descend

to Mrs. Donellan ; ^ but it was stated, though not proved, by

the prisoner in his defence that he on his marriage entered

into articles for the immediate settling of her whole fortime

on herself and children, and deprived himself of the possi-

bility of enjoying even a life estate in case of her death,

and that this settlement extended not only to the fortune,

but to expectancies.*

For some time before the death of Sir Theodosius the

prisoner had on several occasions falsely represented his health

* "Wills, on " Circumstantial Evidence," pp. 192-6.

' Introductory fact (section 9).

' State of things under which facts in issue happen (section 7).

^ Motive (section 8).

* Fact rebutting an inference suggested by a relevant fact (section

9). These facts are omitted by Mr. Wills, but are mentioned in myaccount of the case. Gen. View, Grim. Law., p. 338.

58 Case ofR. v. Donellan.

to te very bad, and his life to be precarious.^ On the 29th

of August the apothecary in attendance sent him a nuld and

harmless draught to be taken the next morning.^ In the

evening the deceased was out fishing/ and the prisoner told

his mother that he had been out with him, and that he had

imprudently got his feet wet, both of which assertions were

false.^ When Sir Theodosius was called on the following

morning he was in good health,* and about seven o'clock his

mother went to his chamber to give him his draught,'" of which

he immediately complained," and she remarked that it smelt

like bitter almonds.'^ In about two minutes he struggled

very much as if "to keep the medicine down, and Lady

Broughton observed a gurgling in his stomach ;'* in ten

minutes he seemed inclined to doze ; " but in five minutes

afterwards she found him with his eyes fixed, his teeth

clenched, and froth running out of his mouth, and within

half an hour after taking the dose he died."

Lady Broughton ran down-stairs to give orders to a servant

to go for the apothecary, who lived about three miles distant,'^

and in less than five minutes after Sir Theodosius had been

taken Donellan asked where the physic bottle was, and Lady

^ Facts showing preparation for facts in issue (section 8). The

Btatementa are also admissions as against the prisoner (section 17).

^ A fact affording an opportunity for facts in issue (section 7).

' Introductory to what follows (section 9).

^ Preparation (section 8). Admission (section 17).

° State of things under which fact in issue happened (section 7).

'° It was suggested that Donellan changed the apothecary's draught

for a poisoned one administered by Lady Broughton, an innocent

agent. Therefore the administration of the draught suggested to be

poisoned was a fact in issue, (section 5).

" As to this, see section 14.

"J. e.,of prussic acid. Lady Broughton perceived by smell the

presence of the poison. Therefore she smelt a fact in issue (section 5).

" Effects of facts in issue (section 7). All these facts go to make

up the fact of his death, which was a fact in issue.

" Introductory to next fact as fixing the time (section 9).

Case ofR. v. Donellafi. 59

Broughton showed him the two bottles. The prisoner then

took up one of them and said, " Is this it 1" and being answered

" Yes," he poured some water out of the water bottle which

was near into the phial, shook it, and then emptied it into

some dirty water which was in a wash-hand basin. Lady

Broughton said, " You should not meddle with the bottle,"

upon which the prisoner snatched up the other bottle and

poured water into that also, and shook it, and then put his

finger into it and tasted it. Lady Broughton again asked

what he was about, and said he ought not to meddle with

the bottles ; on which he replied that he did it to taste it,'*

though'* he had not tasted the first bottle.'* The prisoner

ordered a servant to take away the basin, the dirty things, and

the bottles, and put the bottles into her hands for that pur-

pose ; she put them down again on being directed by Lady

Broughton to do so, but subsequently removed them on the

peremptory order of the prisoner." On the arrival of the

apothecary the prisoner said the deceased had been out the

preceding evening fishing, and had taken cold, but he said

nothing of the draught which he had taken.'^ The prisoner

had a still in his own room which he used for distilling

roses;'" and a few days after the death of Sir Theodosius he

brought it full of wet lime to one of the servants to be

cleaned.'" The prisoner made several false and inconsistent

statements to the servants as the cause of the young man's

death;'" and on the day of his death he wrote to Sir W.

Wheeler, his guardian, to inform him of the event, but made

no reference to its suddenness.™ The cof&n was soldered up

" Subsequent conduct influenced by a fact in issue and statements

explanatory of conduct (section 8).

'* This word is Mr. Wills's comment.

" Subsequent conduct and explanatory statements (section 8).

" Opportunity to distil laurel water, the poison said to have been

nsed (section 7).

'" Subsequent conduct (section 8).

'» Admissions, 17, 18.

6o Case ofR. v. Donellan.

on the fourth day after the death." Two days afterwards

Sir W. Wheeler, in consequence of the rumours which had

reached him of the manner of Sir Theodosius's death, and that

suspicions were entertained that he had died from the effects

of poison,^^ wrote a letter to the prisoner requesting that an

examination might take place, and mentioning the gentlemen

by whom he wished it to be conducted.*' The prisoner

accordingly sent for them, but did not exhibit Sir W. Wheeler's

letter alluding to the suspicion that the deceased had been

poisoned, nor did he mention to them that they were sent

for at his request. Having been induced by the prisoner

to suppose the case to be one of ordinary death,-* and finding

the body in an advanced state of putrefaction, the medical

gentlemen declined to make the examination on the ground

that it might be attended with personal danger. On the fol-

lowing day a medical man who had heard of their refusal

to examine the body offered to do so, but the prisoner declined

his offer on the ground that he had not been directed to send

for him.'^ On the same day the prisoner wrote to Sir W.

Wheeler a letter in which he stated that the medical men

had fully satisfied the family, and endeavoured to account

^'^ Introductory to what follows (section 9).

^ Introductory to, and explanatory of, wliat follows (section 9). It

should be observed that proof of the rumours and suspicions for the

purpose of showing the truth of the matters rumoured and suspected

would not be admissible. The fact that there were rumours and sus-

picions explains Sir W. Wheeler's letter.

"' Statement to the prisoner and affecting his conduct (section 8,

ex. 2).

*" Subsequent conduct of prisoner (section 8) and Mr. Wills's com-

ment on the conduct.

^^ Subsequent conduct (section 8). The fact that the first set of

doctors refused explains the prisoner's conduct by showing that it

had the effect of preventing examinations (section 7). The ground

on which they refused tends to rebut this inference (section 9), but

the second doctor's offer, and the prisoner's conduct thereon, tend to

confirm it (section 9).

Case ofR. v. Donellan. 6i

for the event by the aflment under which the deceased hadbeen suffering ; but he did not state that they had not madethe examination.^* Three or four days after. Sir W. Wheeler

having been informed that the body had not been examined,*'^

wrote to the prisoner insisting that it should be done,''^ which,

however, he prevented by various disingenuous contrivances,"'

and the body was interred without examination.'" In the

meantime, the circumstances having become known to the

coroner, he caused the body to be disinterred and examined

on the eleventh day after death. Putrefaction was found

to be far advanced, and the head was not opened, nor the

bowels examined, and in other respects the examination was

incomplete.'' When Lady Broughton, in giving evidence

before the coroner's inquest, related the circumstance of the

prisoner having riased the bottles, he was observed to take

hold of her sleeve and endeavour to check her, and he after-

wards told her that she had no occasion to have mentioned

that circumstance, but only to answer such questions as were

put to her ; and in a letter to the qproner and jury he endea-

voured to impress them with the belief that the deceased had

inadvertently poisoned himself with arsenic, which he had

purchased to kill fish.'' Upon the trial four medical men

—

three physicians and an apothecary—were examined on the

part of the prosecution, and expressed a very decided opinion,

mainly grounded upon the symptoms, the suddenness of the

death, the jpost-mortem appearances, the smell of the draught

''^ Sjibsequent conduct (section 11) and admission (section 17).

"'' Introductory (section 9).

^ Statement to the prisoner affecting his conduct (section 8, ex. 2.)

^' Each contrivance and each circumstance which showed that it

was disingenuous would come under the head of subsequent conduct

(section 8).

30 The burial was part of the transaction (section 6.) The absence of

examination is explanatory of parts of the medical evidence. The

whole is introductory to medical evidence (section 9).

'^ Introductory to opinions of experts (sections 9, 45, 46).

^^ Subsequent conduct (section 8) and admissiona (section 17).

^2 Case ofR. v. Donellan.

as observed by Lady Brongbton, and the similar effects pro-

duced by experiments upon animals, that the deceased had

been poisoned with laurel water ;'* one of them stating that on

opening the body he had been affected with a biting acrimo-

nious tastCj like that which affected him in aU the subsequent

experiments with laurel water.^^ An eminent'* surgeon and

anatomist stated a positive opinion that the symptoms did

hot necessarily lead to the conclusion that the deceased had

been poisoned, and that the appearances presented upon dis-

section explained nothing but putrefaction.''^ The prisoner

was convicted and executed.

^^ Opinion of experts (section 45).

^* This is a case of tasting a fact in issue, int., the laurel water

present in tlie body. See definition of ' fact,' section 3.

^2 This was the famous John Hunter.

Case of R. v. Belaney, 63

II.

Case of E. v. Belaney*

A surgeon named Belaney was tried at the Central Criminal

Court, August, 1844, before Mr. Baron Gurney, for the murder

of his wife. They left their place of residence, at North Sunder-

land, on a journey of pleasure to London on the 1st of June

(having a few days previously made mutual wills in each

other's favour),' where on the 4th of that month they went

into lodgings." The deceased, who was advanced in pregnancy,

was slightly indisposed after the journey; but not sufficiently

so to prevent her going about with her husband.^ On the 8th,

beino- the Saturday morning after^ the arrival in town, the

prisoner rang the bell for some hot water, a tumbler, and a

spoon ; * and he and his wife were heard conversing in their

chamber about seven o'clock. About a quarter before eight

the prisoner called the landlady up stairs, saying that his wife

was very ill ; and she found her lying motionless on the bed,

with her eyes shut and her teeth closed, and foaming at the

mouth. On being asked if she was subject to fits, the pri-

soner said she had had fits before, but none like this, and that

she would not come out of it. On. beiag pressed to send

for a doctor, the prisoner said he was a doctor himself, and

should have let blood before, but there was no pulse. On

beino- further pressed to send for a doctor and his friends he

* Wills, on "Circumstantial Evidence," pp. 176-178.

' Motive (section 8).

^ Introductory (section 9).

' State of things under which fact in issue happened (section 7).

• Preparation (section 8).

"^4 Case ofR. v. Belaney.

assented, adding that she would not come to ; thSit this was an

affection of the heart, and that her mother died in the same

way nine months ago. The servant was accordingly sent to

fetch two of the prisoner's friends, and on her return she and

the prisoner put the patient's feet and hands in warm water,

and applied a mustard plaster to her chest. A medical man

was sent for, but before his arrival the patient had died.^

There was a tumbler close to the head of the bed, about one-

third fuU of something clear, but whiter than water ; and there

was also an empty tumbler on the other side of the table, and

a paper of Epsom salts.^ In reply to a question from a

medical man'whether the deceased had taken any medicine

that morning, the prisoner stated that she had taken nothing

but a little salts.'' On the same morning the prisoner ordered

a grave for interment on the following Monday.^ In the

meantime the contents of the stomach were examined, and

found to contain prussic acid and Epsom salts. It was de-

posed that the symptoms were similar to those of death by

prussic acid, but might be the result of any powerful sedative

poison, and that the means resorted to by the prisoner were not

likely to promote recovery ; but that cold affusion, artificial

respiration, and the application of brandy or ammonia (which

in the shape of smelling salts is found in every house) and

other stimulants were the appropriate remedies, and might

probably have been effectual. No smell of prussic acid had

been discovered in the room, though it has a very strong

odour, but the window was open, and it was stated that the

odour is soon dissipated by a current of air.^ The prisoner

' The death and attendant circumstances are facts in issue and part

of the transaction (sections 5, 26). The other facts are conduct (sec-

tion 8) and admissions (sections 17, 18).

° State of things at death, or cause or effect of administration of

poison (section 7).

' Admissions (sections 17, 18).

° Conduct (section 8).

" Effect of poisoning (section 7), opinions of experts (sections 45-

46). The absence of the smell of prussic acid and the presence of the

Case ofR. v. Belaney. 65

had purchased prussic acid, as also acetate of morphine, onthe preceding day, from a vender of medicines with whom hewas intimate

; but he had been in the habit of using thesepoisons under advice for a complaint in the stomach.'" Twodays after the fatal event the prisoner stated to the medicalman, who had been called in and who had assisted in theexamination of the body, that on the morning in question hewas about to take some prussic acid ; that on endeavouring to

remove the stopper he had some difficulty, and used someforce with the handle of a tooth-brush ; that in consequence of

breaking the neck of the bottle by the force, some of the acid

was spilt; that he placed the remainder in the tumbler on

the drawers at the end of the bed room, that he went into

the front room to fetch a bottle wherein to place the acid, butinstead of so doing began to vsrite to his Ijriends in thecountry, when in a few minutes he heard a scream from his

wife's bed room, calling for cold water, and that the prussic

acid was undoubtedly the cause of her death. Upon beingasked what he had done with the bottle, the prisoner said hehad destroyed it ; and on being asked why he had not mentionedthe circumstance before, he said he had not done so because

he was so distressed and ashamed at the consequences of his

negligence. To various persons in the north of England the

prisoner wrote false and suspicious accounts of his wife's

illness. In one of them, dated from the Euston Hotel on the

6th of June, he stated that his wife was unwell, and that twomedical men attended her, and that in consequence he should

give up an intended visit to Holland, and intimated his

apprehension of a miscarriage. Eor these statements there

was no foundation. At that time moreover he had removed

from the Euston Hotel into lodgings, and on the same day he

had made arrangements for leaving his wife in London, and

draft are respectively a fact suggesting the absence of prussic acid,

and a fact rebutting that inference (section 9).

'° Preparation (section 8) and fact rebutting inference from purchase

of poison (section 9).

66 Case of R. v. Belaney.

proceeding himself on his visit to Holland. In another letter,

dated 8th of June, and posted after his wife's death, though

it could not be determined whether it was written before or

after, the prisoner stated that he had had his wife removed

from the hotel to private lodgings, where she was dangerously

ill and attended by two medical men, one of whom had pro-

nounced her heart to be diseased ; these Tepresentations were

equally false. In another letter^ dated the 9th of June, but

not posted until the 10th, he stated the fact of his wife's

death, but without any allusion to the cause ; and in a sub-

sequent letter he stated the reason for the suppression to

be to conceal the shame and reproach of his negligence.

The prisoner's statement to his landlady that his wife's

mother had died from disease of the heart was also a false-

hood, the prisoner having himself stated in writing to the

registrar of burials that brain fever was the cause of death."

It was, however, proved that the prisoner was of a kind dispo-

sition, that he and his wife had lived upon affectionate terms

and that he was extremely careless in his habits ;'^ and no

motive for so horrible a deed was clearly made out, though it

was urged that it was the desire of obtaining her property by

means of her testamentary disposition." Upon the whole,

though the case was to the last degree suspicious, it was

certainly possible that an accident might have taken place in

the way suggested; and the jury brought in a verdict of

acquittal.

Remarks The two cases of DoneUan and Belaney are not merelyon cases of .

'

DoneUan curious m themselves, but throw light upon one of the most

Belaney. important of the points connected with judicial evidence, the

point namely as to the amount of uncertainty which consti-

tutes what can be called reasonable doubt. This I have

already said is a question, not of calculation, but of prudence.

" All these are admissions (sections 17, 18), and conduct (section 3).

" Character (section 53).

" Motive (section 8).

Case ofR. v. Belaney. f]

The cases in question show that different tribunals

at different times do not measure it in precisely the

same way. In Donellan's case the jury did not think the

possibility that Sir Theodosius Broughton might have died of

a fit sufficiently great to constitute reasonable doubt as to his

having been poisoned. In Belaney's case the jury thought

that the possibiKty that the prisoner gave his wife the poison

by accident did constitute a reasonable doubt as to his guilt.

If the chances of the guilt and innocence of the two men could

be numerically expressed, they would I think be as nearly as

possible equal, and it might be said that both or that neither

ought to have been convicted if it were not for the all-import-

ant principle that every case is independent of every other,

and that no decision upon facts forms a precedent for any

other decision. If two juries were to try the very same

case, upon the same evidence and with the same summiug

up and the same arguments by counsel, theymight very pro-

bably arrive at opposite conclusions, and yet it might be im-

possible to say that either of them was wrong. Of the moral

qualifications for the office of a judge few are more important

than the strength of mind which is capable of admitting

the unpleasant truth that it is often necessary to act upon

probabilities, and to run some risk of error. The cruelty of

the old criminal law of Europe, and of England as well as of

other countries produced many bad effects, one of which was

that it intimidated those who had to put it in force. The

saying that it is bettter that ten criminals should escape than

that one innocent man should be convicted expresses this

sentiment, which has I think been carried too far, and has

done much to enervate the administration of justice.

58 Case of R. v. Richardson.

III.

Case of E. v. Eichaedson*

In the autumn of 1786 a young woman, wlio lived with

her parents in a remote district in the stewartry of Kirkcud-

bright/ was one day left alone in the cottage,^ her parents

having gone out to the harvest-field.^ On their return home

a little after mid-day,' they found, their daughter murdered,*

with her throat cut ^ in a most shocking manner.

The circumstances in which she was found, the character of

the deceased, and the appearance of the wound, aU concurred

in excluding all supposition of suicide ; ^ while the surgeons

who examined the wound were satisfied that it had been in-

flicted by a sharp instrument, and by a person who must have

held the weapon in his left hand.'' Upon opening the body the

deceased appeared to have been some months gone with child ;^

* Wills, pp. 225-229. Mr. Wills observes, " This case is also con-

cisely stated in the Memoirs of the Life of Sir Walter Scott, IV.,

p. 52, and it supplied one of the most striking incidents in Guy

Mannering."

Introductory (section 9).

" Opportunity (section 7).

^ Explanatory (section 9).

* Mr. Wills's comment. They found her with the throat eut, and

Mr. Wills says she was murdered ; but her murder was to them an

inference, not a fact (section 3).

' Fact in issue (section 5).

® Suicide would be a relevant fact as being inconsistent with murder.

The facts which exclude suicide are relevant as inconsistent with a

relevant fact (section 11).

' Opinions of experts (section 45).

* State of things under which death happened (section 7). Motive

section 8).

Case ofR. v. Richardson. 69

and on examining the ground about the cottage there were

discovered the footsteps of a person who had seemingly been

running hastily from the cottage by an indirect road through

a c[uagmire or bog, in which there were stepping-stones.^ It

appeared, however, that the person in his haste and confusion

had slipped his foot and stepped into the mire, by which he

must have been wet nearly to the middle of the leg.'" The

prints of the footsteps were accurately measured, and an exact

impression taken of them," and it appeared that they were

those of a person who must have worn shoes, the soles of

which had been newly mended, and which, as is usual in that

part of the country, had iron knobs or nails in them." These

were discovered also along the track of the footsteps, and at

certain intervals drops of blood, and on a stile or small gate-

way near the cottage, and in the line of the footsteps some

marks resembling those of a hand which had been bloody."

ISTot the slightest suspicion at this time attached to any parti-

cular person as the murderer, nor was it even suspected who

might be the father of the child of which the girl was preg-

nant.'^ At the funeral a number of persons of both sexes at-

tended,'^ and the steward-depute thought it the fittest oppor-

tunity of endeavouring, if possible, to discover the murderer

conceiving rightly that, to avoid suspicion, whoever he was

he would not on that occasion be absent." With this view

he called together, after the interment, the whole of the men

who were present, being about sixty in number." He caused

" Effects of fact in issue (section 7).

'» This is so stated as to mix up inference and fact. Stripped of

inference, the fact might have been stated thus,—' There were such

marks in the bog as would have been produced if a person crossing

the stepping-stones had slipped with one foot. The mud was of such

a depth that a person so slipping would get wet to the middle of

the leg.'

1' Effects of fact in issue (section 7).

^"^ Observation.

" Introductory (section 9).

70 Case of R. v. Richardson.

the shoes of each of them to be takeu off and measured, and

one of the shoes was found to resemble pretty nearly the

impression of the footsteps near to the cottage. The wearer

of the shoe was the schoolmaster of the parish, which led to

a suspicion that he must have been the father of the child, and

had been guilty of the murder to save his character. On a

closer examination of the shoe, it was discovered that it was

pointed at the toe, whereas the impression of the footstep was

round at that place." The measurement of the rest went on,

and after going through nearly the whole number, one at

length was discovered which corresponded exactly with the

impression in dimensions, shape of the foot, form of the sole,

and the number and position of the nails.'^ William Eichard-

son, the young man to whom the shoe belonged, on being

asked where he was the day deceased was murdered, replied,

seemingly without embarrassment, that he had been all that

day employed at his master's work,'^ —a statement which his

master and fellow-servants who were present confirmed."''

This going so far to remove suspicion, a warrant of commit-

ment was not then granted, but some circumstances occurring

a few days afterwards having a tendency to excite it anew, the

young man was apprehended and lodged in jail.'^ Upon

'* Irrelevaiit.

'^ The making of the footmark was an effect of, or conduct subse-

quent to and affected by, a fact in issue (section 7). The measurement

of the siKty. shoes, of which one only corresponded exactly with the

mark, was a fact, or rather a set of facts, making highly probable

the relevant fact that that shoe made that mark (section 11). The

experiment itself is an application of the method of difference. This

shoe would make the mark, and no other of a very large numberwould.

" This would be relevant against him, but not in his favour as an

admission (sections 17, 18).

'^ The fact that his master and fellow-servants confirmed his state-

ment is irrelevant. If they had testified afterwards to the fact itself,

it would have been relevant.

'" Irrelevant.

Case of R. v. Richardson.

his examination '^he acknowledged that he was left-handed ;2<'

and some scratches being observed on his cheek, he said he

had got them when pulling nuts in a wood a few days before.^'

He still adhered to what he had said of his having been onthe day of the murder employed constantly in his master's

work f* but in the course of the inc[uiry it turned out that

he had been absent from his work about half an hour, the time

being distinctly ascertained, in the course of the forenoon of

that day ; that he called at a smith's shop under the pretence

of wanting something which it did not appear that he had

any occasion for ; and that this smith's shop was in the wayto the cottage of the deceased.''^ A young girl who was some

hundred yards from the cottage, said that, about the time

when the murder was committed (and which corresponded

to the time when Eichardson was absent from his fellow-ser-

vants), she saw a person exactly with his dress and appear-

ance running hastily towards the cottage, but did not see him

return, though he might have gone round by a small eminence

which would intercept him from her view, and which was the

very track where the footsteps had been traced."*

" By Scotch law, as well as by the Code of Criminal Procedure, a

prisoner may be examined.

*" The fact that he was left-handed would be a cause of a fact in

issue, viz., the peculiar way in which the fatal wound was given. The

admission that he was left-handed would be relevant as proof of the

fact by sections 17, 18.

"' If it was suggested that the scratches were made in a struggle

with the girl, they would be effects of a fact in issue (section 7), and

the statement would be relevant as against the prisoner as an admis-

sion (section 17, 18).

^^ Opportunity (section 7). Admissions (sections 17, 18). The call at

the shop was preparation by making evidence (section 8, illustration e).

'^ There is here a miKture of fact and inference ; the girl could not

know that a murder was committed at the time when it was com-

mitted. Probably she mentioned the time, and it corresponded -with

the time when Eichardson was away. This would be preparation and

opportunity (section 7). The existence of the small eminence explains

her not seeing him return (section 9).

Case ofR. v. Richardson.

His fellow-servants now recollected that on the forenoon

rff that day they were employed with Eichardson in driving

their master's carts, and that, when passing by a wood which

they named, he said that he must run to the smith's shop,

and would be back in a short time. He then left his cart

under their charge, and, having waited for him about half an

hour, which one of the servants ascertained by having at the

time looked at his watch, they remarked on his return that

he had been absent a longer time than he said he would be,

to which he replied that he had stopped in the wood to

gather some nuts. They observed at the same time one of

his stockings wet and soiled as if he had stepped in a puddle.

He said he had stepped into a marsh, the name of which he

mentioned, on which his fellow-servants remarked " that he

must have been either mad or drunk if he stepped into that

marsh, as there was a footpath which went along the side of

it." It then appeared by comparing the time he was absent

with the distance of the cottage from the place where he had

left his fellow-servants that he might have gone there, com-

mitted the murder, and returned to them.^* A search was

then made for the stockings he had worn that day.'^ They

were found concealed in the thatch of the apartment where he

slept, and appeared to be much soiled, and to have some

drops of blood on them.^^ The first he accounted for by

saying, first, that his nose had been bleeding some days

before ; but it being observed that he wore other stockings on

that day, he said he had assisted in bleeding a horse ; but it

was proved that he had not assisted, and had stood at such a

distance that the blood cordd not have reached him.^'' On

^ All these facts are either opportunity or preparation or subse-

quent or previous conduct or admissions (section 7, 8, 17).

''^ Introductory to next fact (section 91).

26 The concealment is subsequent conduct (section 8). The state

of the stockings is the effect of a fact in issue (section 7).

^' The falsehoods are subsequent conduct (section 8), or admissions,

(sections 17 & 18). The prisoner's allegation about the horse is an

Case of R. Y Richardson. 73

examining the mud or sand upon the stockings, it appeared

to correspond precisely with that of the mire or puddleadjoining the cottage, and which was of a very particular

kind, none other of the same kind heing found in that neigh-

bourhood.^^ The shoemaker was then discovered who hadmended his shoes a short time before, and he spoke distinctly

to the shoes of the prisoner which were exhibited to him as

having been those he had mended.^' It then came out that

Eichardson had been acquainted with the deceased, who was

considered in the country as of weak intellects, and had on

one occasion been seen with her in a wood in circumstances

that led to a suspicion that he had criminal intercourse with i .>Vi'«.>^m.

her, and, on being taunted with having such connection with

one in her situation, he seemed much ashamed and greatly -

hurt.^° It was proved further by the person who sat next

him when his shoes were measuring, that he trembled muchand seemed a good deal agitated, and that, in the interval

between that time and his being apprehended, he had been

advised to fly, but his answer was, "Where can I fly to ?" ^'

On the other hand, evidence was brought to show that

allegation of a fact explaining the relevant fact, that there was blood

on the stockings (section 9) ; and the facb proved about his distance

from the horse is a fact rebutting the inference suggested thereby

that the blood was the horse's (section 9).

^ Effect of a fact in issue (section 7). The similarity of the sand

on the stockings to the sand in the marsh was one of the effects of

the slip, which was the effect of the murder.^^ That the marks were made by the prisoner's shoe was relevant

as an effect of facts in issue. That the shoes which made the marks

were the prisoner's had been already proved by their being found on

his feet. This further proof seems superflaous, unless it was sug-

gested that they belonged to some one else.

^° The opinion about her would be irrelevant. The fact that her

intellect was weak would be part of the state of things under which

the murder happened, and with what foUows would show motive

(sections 7, 8).

^^ Subsequent conduct (section 10). The weight of this is very

slight.

74 C(3:^^ of R. V, Richardson.

about the time of the murder a boat's crew from Ireland had

landed on that part of the coast near to the dwelling of the

deceased j'^^ and it was said that some of the crew might

have committed the murder, though their motives for doing

so it was difficult to explain, it not being alleged that robbery-

was their purpose, or that anything was missing from the

cottages in the neighbourhood. The prisoner was convicted,

confessed, and was hanged.

Remarks THs case iUustrates the application of what Mr. Mill calls

ardson's'*^^ method of agreement upon a scale which excludes the

case. supposition of chance, thus :

—

"S.

.^* 1/8

(1) The murderer had a motive,—Eichardson had a

motive.

(2) The murderer had an opportunity at a certain hour

of a certaiu day in a certain place,—Eichardson had an

opportunity on that hour of that day at that place.

(3) The murderer was left-handed,—Eichardson was left-

handed.

(4) The murderer wore shoes which made certain marks,

—

Eichardson wore shoes which made exactly similar marks.

(5) If Eichardson was the murderer and wore stockings,

they must have been soiled with a peculiar kind of sand,

—

he did wear stockings which were soiled with that kiud of

sand.

(6) If Eichardson was the murderer, he would naturally

conceal his stockings,—he did conceal his stockings.

(7) The murderer would probably get blood on his clothes,

—Eichardson got blood on his clothes.

(8) If Eichardson was the murderer, he would probably

tell lies about the blood,—he did tell lies about the blood.

(9) If Eichardson was the murderer, he must have been

at the place at the time in question,—a man very like him

was seen running towards the place at the time.

(10) If Eichardson was the murderer, he would probably

^^ Opportunity for the mm-der (section 7).

Case of R. v. Richardson. 75

tell liqp about Ms proceedings during the time when the

murder was committed,—he told such lies.

Here are ten separate marks, five of which must have

been found in the murderer, one of which must have been

found on the murderer if he wore stockings, whilst others

probably would be found in him.

All ten were found in Eichardson. Four of them were so

distinctive that they could hardly have met in more than one

man. It is hardly imaginable that two left-handed men,

wearing precisely similar shoes and closely resembling each

other, should have put the same leg into the same hole of

the same marsh at the same time, that one of them should

have committed a miirder, and that the other should have

causelessly hidden the stockings which had got soUed in the

marsh. Yet this would be the only possible supposition

consistent with Eichardson's innocence.

76 Case of R. v. Patch.

IV.

Case of E. v. Patch.*

A man named Patcli had been received by Mr. Isaac Blight

a ship-breaker, near Greenland Dock, into his service in the

year 1803.' Mr. Bright having become embarrassed in his

circumstances in July, 1805, entered into a deed of compo-

sition with his creditors ; and in consequence of the failure

of this arrangement, he made a colourable transfer of his pro-

perty to the prisoner.' It was afterwards agreed between

them that Mr. Blight was to retire nominally from the busi-

ness, which the prisoner was to manage, and the former was

to have two-thirds of the profits, and the prisoner the re-

maining third, for which he was to pay £1,250. Of this

amount, £250 was paid in cash, and a draft was given for the

remainder upon a person named Goom, which would become

payable on the 16th of September, the prisoner representing

that he had received the purchase-money of an estate and lent

it to Goom.^ On the 16th of September the prisoner repre-

sented to Mr. Blight's bankers that Goom could not take up

the bill, and withdrew it, substituting his own draft upon

Goom to fall due on the 20th September.^ On the 19th of

September the deceased went to visit his wife at Margate,

and the prisoner accompanied him as far as Deptford,* and

then went to London and represented to his bankers that

* Wills's Oiroumstantial Evidence.

' Introductory (section 9).

•^ Motive (section 8).

' Preparation (section 8).

' Introductory (section 9) but unimportant.

Case of R. v. Patch. jj

Goom would not be able to face bis draft, but tbat be bad

obtained from bim a note wbicb satisfied bim, and tberefore

tbey were not to present it.^ Tbe prisoner boarded in Mr.

Bligbt's bouse, and tbe only otber inmate was a female servant,

wbom the prisoner, about eigbt o'clock tbe same evening (tbe

19tb), sent out to procure some oysters for bis supper." Dujing

her absence a gun or pistol ball was fired through tbe shutter

of a parlour fronting tbe Thames, where the family, when at

home, usually spent their evenings. It was low water, and

the mud was so deep that any person attempting to escape in

that direction must have been suffocated, and a man who was

standing near the gate of the wharf, which was the only other

mode of escape, heard tbe report, but saw no person.'^ From

tbe manner in which tbe ball entered tbe shutter it was clear

that it had been discharged by some person who was close to

the shutter, and tbe river was so much below the level of tbe

house, tbat tbe baU, if it bad been fired from thence, must

have reached a much higher part than that which it struck.

The prisoner declined the offer of the neighbours to remain

in the house with bim that night.^ On the following day he

wrote to inform the deceased of tbe transaction, stating bis

hope that tbe shot bad been accidental ; tbat be knew of no

person who bad any animosity against bim, that he wished


' Explains what follows (section 9). Preparation (section 8).

' The suggestion was that Patch fired the shot himself in order to

make evidence in his own favour. This would be preparation (sec-

tion 8). Hence his firing the shot would be a relevant fact. The

facts in the text are facts which, taken together, make it highly pro-

bable that he did so, as they show that he and no one else had the

opportunity, and that it was done by some one (section 11).

The last fact illustrates the remarks made at pages 40, 41. The infer-

ence from the facts stated, assuming them to be true, is necessary ; but,

suppose that the " man standing near the gate " saw some one run-

ning, and for reasons of his own denied it, how could he be contra-

dicted?

' Conduct (section 8).

7 8 Case of R. v. Patch.

to know for whom it was intended, and that he should be

happy to hear from him, but much more so to see him.^ Mr.

Blight returned home on the 23rd September, having pre-

viously been to London to see his bankers on the subject of

the ^1,000 draft/" Upon getting home, the draft became the

subject of conversation, and the deceased desired the prisoner

to go to London, and not to return without the money."

Upon his return, the prisoner and the deceased spent the

evening in the back parlour, a different one from that in which

the family usually sat.'^ About eight o'clock theprisoner went

from the parlour into the kitchen, and asked the servant for

a candle'-^ complaining that he was disordered.'* The pri-

soner's way from the kitchen was through an outer door

which fastened by a spring lock, and across a paved court

in front of the house which was enclosed by palisades, and

throLigh a gate over a wharf in front of that court, on which

there was the kind of soil peculiar to premises for breaking

up ships, and then through a counting-house. All of these

doors, as well as the door of the parlour, the prisoner left

open, notwithstanding the state of alarm excited by the

former shot. The servant heard the privy door slam, and

almost at the same moment saw the ilash of a pistol at the

door of the parlour where the deceased was sitting, upon

which she ran and shut the outer door and gate. The pri-

soner immediately afterwards rapped loudly at the door for

admittance with his clothes in disorder. He evinced great

apparent concern for Mr. Blight, who was mortally wounded,

and died on the following day. From the state of tide, and

from the testimony of various persons who were on the


'° Hardly relevant, except as introductory to what follows (section

9).

" Motive section 8).

'" State of things under which facts in issue happened (section 7.)

" Preparation (section 8).


Case of R. V. Patch. 79

outside of the premises, no person could have escaped from

them.'*

In consequence of this event Mrs. Blight returned home,'^

and the prisoner in answer to an inquiry about the draft

which had made her husband so uneasy, told her that it was

paid, and claimed the whole of the property as his own.''

Suspicion soon fixed upon the prisoner,"* and in his sleeping-

room was found a pair of stockings rolled up like clean

stockings, but with the feet plastered over with the sort of

soil found on the wharf, and a ramrod was found in the

privy." The prisoner usually wore boots ; but on the even-

ing of the murder he wore shoes and stockings.^" It was

supposed that to prevent alarm to the deceased or the female

servant, the murderer must have approached without his

shoes, and afterwards gone on the wharf to throw away the

pistol into the river."' All the prisoner's statements as to

his pecuniar}' transactions with Goom and his right to draw

upon him, and the payment of the bUl, turned out to be

false.^'^ He attempted to tamper with the servant girl as to

her evidence before the coroner, and urged her to keep to one

account ;^^ and before that officer he made several incon-

'^ These facts collectively are inconsistent with the firing of the

shot by any one except Patch (section 11). They would also be

relevant as being either facts in issue, or the state of things under

which facts in issue happened (section 7), or as preparation or oppor-

tunity (sections 7 & 8, illustration h.).

'° Introductory (section 9).

" Subsequent conduct influenced by a fact in issue (section 8).

" Irrelevant.

" Effect of fact in issue (section 7).

™ State of things under which facts in issue happened (section 7).

'' Fact and inference are mixed up in this statement ; the facts are

(1) that the state of things was such that the deceased and his ser-

vant would have heard the steps of a man with shoes on under the

window ; and (2) that a person who wished to throw anything into

the Thames would have to go on to the wharf.

'" Preparation (section 8).

^ Subsequent conduct (section 8), and admissions (sections 17ife 18).

8o Case ofR. v. Patch.

sistent statements as to his pecuniary transactions with the

deceased, and equivocated much as to whether he wore boots

or shoes on the evening of the murder, as well as to the

ownership of the soiled stockings,"* which, however, were

clearly proved to be his, and for the soiled state of which he

made no attempt to account.^* The prisoner suggested the

existence of malicious feelings in two persons with whom the

deceased had been on ill terms,^^ but they had no motive'-'

for doing him any injury ; and it was clearly proved that

upon both occasions of attack they were at a distance."

Remarks Patch's case illustrates the method of difference, and the

case. whole of it may be regarded as a very complete illustration

of section 11. The general effect of the evidence is, that

Patch had motive and opportunity for the murder, and that

no one else, except himself, could have fired either the shot

which caused the murdered man's death, or the shot which

was intended to show that the murdered man had enemies

who wished to murder him. The relevancy of the first shot

arose from the suggestion that it was an act of preparation.

The proof that it was fired by Patch consisted of independent

facts, showing that it was fired, and that he, and no one else,

could have fired it. The firing of the second shot by

which the murder was committed was a fact in issue. The

proof of it by a strange combination of circumstances was

precisely similar in principle to the proof as to the first shot.

The case is also very remarkable as showing the way in

which the chain of cause and effect links together facts of the

most dissimilar kind ; and this proves that it is impossible to

draw a line between relevant and irrelevant facts otherwise

than by enumerating as completely as possible the more

common forms in which the relation of cause and effect dis-

plays itself. In Patch's case the firing of the first shot was

^* Effect of fact in issue (section 7). ^ Motive (section 8).

^^I.e., no special motive beyond general ill-will.

"" Pacts inconsistent with relevant fact (section 11).

* P. 34

Case ofR. v. Patch. 8i

an act of preparation by way of what is called " making

evidence," but the fact that Patch fired it appeared from a

combination of circumstances which showed that he might,

and that no one else could, have done so. It is easy to con-

ceive that some one of the facts necessary to complete this

proof might have had to be proved in the same way. For

instance, part of the proof that Patch fired the shot consisted

in the fact that no one left certain premises by a certain gate

which was one of the suppositions necessary to be negatived

in order to show that no one but Patch could have fired the

shot. The proof given of this was the evidence of a man

standing near, who said that at the time in question no one

did pass through the gate in his presence, or could have done

so unnoticed by him. Suppose that the proof had been that

the gate had not been used for a long time ; that spiders' webs

had been spun all over the opening of the gate ; that they

were unbroken at night and remained unbroken in the morning

after the shot ; and that it was impossible that they should

have been spun after the shot was fired and beforethe gate was

examined. In that case the proof would have stood thus :

—

Patch's preparations for the murder were relevant to the

question whether he committed it. Patch's firing the first

shot was one of his preparations for the murder. The facts

inconsistent with his not having fired the shot were relevant

to the question whether he fired it. The fact that a certain

door was not opened between certain hours was one of the

facts which, taken together, were inconsistent with his not

having fired the shot. The fact that a spider's web was whole

overnight and also in the morning was inconsistent with the

door having been opened.

Inversely, the integrity of the spider's web was relevant to

the opening of the door ; the opening of the door was relevant

to the firing of the first shot ; the firing of the first shot was

relevant to the firing of the second shot ; and the firing of the

second shot was a fact in issue ; therefore the integrity of the

spider's web was relevant to a fact in issue.

G

82 Case of R. v. Palmer.

Case of E. v. Palmer.'

On the 14tli of May, 1856, William Palmer was tried at the

Old Bailey, under powers conferred on the Courts of

Queen's Bench by 19 Vic, c. 16, for the murder of John

Parsons Cook at Eugeley, in Staffordshire, The trial lasted

twelve days, and ended on the 27th May, when the

prisoner was convicted, and received sentence of death, on

which he was afterwards executed at Stafford.

Palmer was a general medical practitioner at Eugeley, much

engaged iu sporting transactions. Cook, his intimate friend,

was also a sporting man ; and after attending Shrewsbury

races with him on the 13th November, 1865, returned in his

company to Eugeley, and died at the Talbot Arms Hotel, at

that place, soon after midnight, on the 21st ITovember, 1855,

under circumstances which raised a suspicion that he had

been poisoned by Palmer. The case against Palmer was that

he had a strong motive to murder his friend, and that his

conduct before, at the time of, and after his death, coupled

with the circumstances of the death itself, left no reasonable

doubt that he did murder him by poisoning him with antimony

and strychnine, administered on various occasions—^the

antimony probably being used as a preparation for the

strychnine.

The evidence stood as follows :—At the time of Cook's

death. Palmer was involved in bill transactions which appear

to have begun in the year 1853. His wife died in September,

' Eeprinted from my " General View of the Criminal Law of

England," p. 357.

Case of R. v. Palmer. 83

1854, and on her death he received £13,000 on policies

on her life, nearly the whole of which was applied to the dis-

charge of his liabilities." In the course of the year 1855 he

raised other large sums, amounting in all to £13,500, on whatpurported to be acceptances of his mother's. The bills were

renewed from time to time at enormous interest (usually sixty

per cent, per annum) by a money-lender named Pratt, who, at

the time of Cook's death, held eight bills—four on his ownaccount and four on account of his client ; two abeady over-

due, and six others falling due—some in November and others

in January. About £1,000 had been paid off in the course

of the year, so that the total amount then due, or shortly to

faR due to Pratt, was £12,500. The only means which

Palmer had by which these biUs could be provided for was a

policy on the life of his brother, Walter Palmer, for £13,000.

Walter Palmer died in August, 1855,' and William Palmer

had instructed Pratt to recover the amount from the insurance

office, but the office refused to pay. In consequence of this

difficulty, Pratt earnestly pressed Palmer to pay something

in order to keep down the interest or diminish the principal

due on the bills. He issued writs against him and his mother

on the 6th November, and informed him in substance that

they would be served at once, unless he would pay something

on account. Shortly before the Shrewsbury races he had

accordingly paid three sums, amounting in all to £800, of

which £600 went in reduction of the principal, and £200 was

deducted for interest. It was understood that more money

was to be raised as early as possible.

Besides the money due to Pratt, Mr. Wright of Birming-

ham held bUls for £10,400. Part of these, amounting to

£6,500, purported to be accepted by Mrs. Palmer, part were

collaterally secured by a bUl of sale of the whole of WiUiam

Palmer's property. These biUs would fall due on the first or

second week of November. Mr. Padwick also held a bill of

" A bill was found against him for her murder.

^ A bUl was found against Palmer for his murder.

^4 Case of R. v. Palmer.

the same kind for £2,000, on which £1,000 remained unpaid,

and which was twelve months overdue on the 6th of October,

1855. Palmer, on the 12th November, had given Espin a

cheque antedated on the 28th November, for the other £1,000.

Mrs. Sarah Palmer's acceptance was on nearly all these biUs,

and in every instance was forged.

The result is, that about the time of the Shrewsbury races.

Palmer was being pressed for payment on forged acceptances

to the amount of nearly £20,000, and that his only resources

were a certaiu amount of personal property, over which

Wright held a bill of sale, and a poUcy for £13,000, the pay-

ment of which was refused by the of&ce. Should he succeed

in obtaining payment, he might no doubt struggle through his

difficulties, but there stUl remained the £1,000 antedated

cheque given to Espia, which it was necessary to provide for

at once by some means or other. That he had no funds of

his own was proved by the fact that his balance at the bank

on the 19th November was £9 6s. and that he had to borrow

£25 of a farmer named WaUbank, to go to Shrewsbury races.

It foUows that he was under the most pressing necessity to

obtain a considerable sum of money, as even a short delay in

obtaining it might involve him not only in insolvency, but in

a prosecution for uttering forged acceptances.

Besides the embarrassment arising from the bills in the

hands of Pratt, Wright, and Padwick, Palmer was involved in

a transaction with Cook, which had a bearing on the rest of

the case. Cook and he were parties to a bill for £500 which

Pratt had discounted, giving £365 in cash, and a wine war-

rant for £65, and charging £60 for discount and expenses.

He also required an asignment of two racehorses of Cook's

—Pole-star and Sirius—as a collateral security. By Palmer's

request the £365, in the shape of a cheque payable to Cook's

order, and the wine warrant, were sent by post to Palmer at

Doncaster. Palmer wrote Cook's endorsement on the cheque,

and paid the amount to his own credit atjthe bank at Eugeley.

On the part of the prosecution it was said that tliis transac-

Case ofR. v. Palmer. 85

tion afforded a reason why Palmer should desire to be rid of

Cook, inasmuch as it amounted to a forgery by which Cook

was defrauded of £375. It appeared, however, on the other

side, that there were £300 worth of notes relating to some

other transaction, in the letter which enclosed the cheque; and

as it did not appear that Cook had complained of getting no

consideration for his acceptance, it was suggested that he had

authorized Palmer to write his name on the back of the

cheque, and had taken the notes himself. This arrangement

seems not improbable, as it would otherwise be hard to ex-

plain why Cook acquiesced in receiving nothing for his ac-

ceptance, and there was evidence that he meant to provide

for the bUl when it became due. It also appeared late ia the

case that there was another bin for £500, in which Cook and

Palmer were jointly interested.^

Such was Palmer's position when he went to Shrewsbury

races, on Monday, the 12th November, 1855. Cook was

there also ;'and on Tuesday, the 13th, his mare Pole-star won

the Shrewsbury Handicap, by which he became entitled to

the stakes, worth about £380, and bets to the amount of

nearly £2,000. Of these bets he received £700 or £800 on

the course at Shrewsbury. The rest was to be paid at Tatter-

saU's on the following Monday, the 19th November. ^ After

the race Cook invited some of his friends to dinner at the

Eaven Hotel, and on that occasion and on the foUowiag day

he was both sober and well.'' ' On the Wednesday night a

man named Ishmael Fisher came into the sitting-room, which

Palmer shared with Cook, and found them in company with

some other men drinking brandy and water. Cook com-

plained that the brandy " burned his throat dreadfully," and

put down his glass with a small quantity remaining in it.

Palmer drank up what was left, and, handing the glass to

Eead, asked him if he thought there was anything in it to

' AH these facts go to show motive (section 8).

^ State of things under which the following facts occurred (sec-

tion 7).

86 Case of R.v. Palmer.

which Eead replied, " What's the use of handing me the glass

when it's empty?" Cook shortly afterwards left the room,

called out Fisher, and told him that he had been very sick,

and, " he thought that damned Palmer had dosed him." He

also handed over to Fisher £700 or £800 in notes to keep for

him.^ He then became sick again, and was iU aU night, and

had to be attended by a doctor. He told the doctor, Mr.

Gibson, that he thought he had been poisoned, and he was

treated on that supposition. ' Next day Palmer told Fisher

that Cook had said that he (Palmer) had been putting some-

thing into his brandy. He added that he did not play such

tricks with people, and that Cook had been drunk the night

before—which appeared not to be the case. 8 Fisher did not

expressly say that he returned the money to Cook, but from

the course of the evidence it seems that he did, ' for Cook

asked him to pay Pratt £200 at once, and to repay himself on

the following Monday out of the bets which he would receive

on Cook's account at the settling at Tattersall's.

About half-past ten on the Wednesday, and apparently

shortly before Cook drank the brandy and water which he

complained of. Palmer was seen by a Mrs. Brooks in the

passage looking at a glass lamp through a tumbler which

contained some clear iluid like water, and which he was

shaking and turning in Ms hand. There appears, however,

to have been no secrecy in this, as he spoke to Mrs. Brooks

and continued to hold and shake the tumbler as he did so.'"

* Conduct of person against whom oflfence was committed, and

statement explanatory of such conduct (section 8 ; exp. 1).

'The administration of antimony by Palmer would be a fact in

issue, as being one of a set of acts of poisoning which finally caused

Cook's death. Cook's feelings were relevant as the efiect of his being

poisoned (section 7) ; and his statement as to them was relevant under

section 14 as a statement showing, the existence of a relevant bodily

feeling.

' Admission (sections 17, 18).

' Motive (section 8).

'" Preparation (section 8).


George Myatt was called to contradict this for the prisoner.

He said tliat lie was in the room when Palmer and Cook

came in ; that Cook made a remark about the brandy, though

he gave a different version of it from Fisher and Eead ; that

he did not see anything put in it, and that if anything had

been put in it he should have seen. He also swore that

Palmer never left the room from the time he came in till

Cook went to bed. He also put the time later than Fisher

and Eead." All this, however, came to very little. It was

the sort of difference which always arises in the details of

evidence. As Myatt was a frend of Palmer's, he probably

remembered the matter (perhaps honestly enough) in a way

more favourable to him than the other witnesses.

It appeared from the evidence of Mrs. Brooks, and also

from that of a man named Herring, that other persons besides

Cook were taken £1 at Shrewsbury, on the evening in ques-

tion, with similar symptoms. Mrs. Brooks said, "We made

an observation we thought the water might have been

poisoned in Shrewsbury.'' Palmer himself vomited on

his way back to Rugeley according to Myatt.'^

The evidence as to what passed at Shrewsbury clearly

proves that Palmer, being then in great want of money. Cook

was to his knowledge in possession of £700 or £800 in bank-

notes, and was also entitled to receive on the following

Monday about £1,400 more. It also shows that Palmer may

have given him a dose of antimony, though the weight of the

evidence to this. effect is weakened by the proof that diar-

rhoea and vomiting were prevalent in Shrewsbury at the time.

It is, however, important in connection with subsequent

events.

On Thursday, November 15th, Palmer and Cook returned

together to Pugeley, which they reached about ten at night.

Cook went to the Talbot Arms, and Palmer to his own house

" Evidence against last fact (section 5).

" Facts rebutting inference suggested by preceding fact (sec-

tion 9).


immediately opposite. Cook stUl complained of being imweU.

On the Friday he dined with Palmer, in company with an

attorney, Mr. Jeremiah Smith, and returned perfectly sober

about ten in the evening." At eight on the following morning

(November 17th) Palmer came over, and ordered a cup of

coffee for him. The coifee was given to Cook by Mills the

chambermaid, in Palmer's presence. "When she next went to

his room, an hour or two afterwards, it had been vomited.'* In

the course of the day, and apparently about the middle of the

day, Palmer sent a charwoman, named Eowley, to get some

broth for Cook at an inn called the Albion. She brought it

to Palmer's house, put it by the fire to warm, and left the

room. Soon after Palmer brought it out, poured it into a cup,

and sent it to the Talbot Arms with a message that it came

from Mr. Jeremiah Smith. The broth was given to Cook,

who at first refused to take it ; Palmer, however, came in, and

said he must have it. The chambermaid brought back the

broth which she had taken downstairs, and left it in the

room. It also was thrown up." In the course of the after-

noon Palmer called in Mr. Bamford, a surgeon eighty years

of age, to see Cook, and told him that when Cook dined at

his (Palmer's) house he had taken too much champagne. '^

Mr. Bamford, however, found no bilious symptoms about him,

and he said he had only drunk two glasses. ^^ On the Satur-

day night Mr. Jeremiah Smith slept in Cook's room, as he

was still ill. On the Sunday, between twelve and one,

Palmer sent over his gardener, Hawley, with some more

" Introductory to what follows (section 9), and shows state of

things under which following facts occurred (section 7).

'* Pact in issue and its eifect, as this was an act of poisoning

(section 5).

" Conduct and statements explaining conduct (section 8).

'° Eebuts inference in Palmer's favour, suggested by preceding fact

and explains the object of his conduct by showing that his statement

was false (section 9). Cook's statement relates to his state of body

(section 14).


broth for Cook. " Elizabeth Mills, the servant at the Talbot

Arms, tasted it, taking two or three spoonfuls. She becameexceedingly sick about half an hour afterwards, and vomited

till five o'clock in the afternoon. She was so ill that she had

to go to bed. This broth was also taken to Cook, and the

cup afterwards returned to Palmer. It appears to have been

taken and vomited, though the evidence is not quite explicit

on that point. ^° By the Sunday's post Palmer wrote to Mr.

Jones, an apothecary, and Cook's most intimate friend, to

come and see him. He said that Cook was " confined to his

bed with a severe bilious attack, combined with diarrhoea."

The servant Mills said there was no diarrhcea. '^ It was

observed on the part of the defence that this letter was

strong proof of innocence. The prosecution suggested that

it was " part of a deep design, and was meant to make evi-

dence in the prisoner's favour." The fair conclusion seems

be to that it was an ambiguous act which ought to weigh

neither way, though the falsehood about Cook's symptoms is

suspicious as far as it goes.

On the night between Sunday and Monday Cook had some

sort of attack. When the servant Mills went into his room

on the Monday he said, " I was just mad for two minutes."

She said, " Why did you not ring the bell ? " He said, " I

thought that you would be all fast asleep, and not hear

it." He also said he was disturbed by a quarrel in the

street. It might have waked and disturbed him, but he was

not sure. This incident was not mentioned at first by

Barnes and MiUs, but was brought out on their being re-

called at the request of the prisoner's counsel. It was con-

sidered important for the defence, as proving that Cook had

had an attack of some kind before it was suggested that any

strychnine was administered ; and the principal medical

" Fact in issue—administration of poison (section 5).

'8 Effects of facts in issue (section 7).

" Conduct (section 8), and explanation of it (section 9).

90 Case ofR. v. Palmer.

witness for the defence, Mr. Nunneley, referred to it with

this view.'^"

On the Monday, about a quarter-past or half-past seven,

Palmer itgain visited Cook ; but as he was in London about

half-past two, he must have gone to town by an early train.

During the whole of the Monday Cook was much better.

He dressed himseK, saw a jockey and his trainer, and the

sickness ceased.^'

In the meantime Palmer was in London. He met hy

appointment a man named Herring, who was connected with

the turf Palmer told him he wished to settle Cook's account

and read to him from a list, which Herring copied as Palmer

read it, the particulars of the bets which he was to receive.

They amounted to £984 clear. Of this sum Palmer instructed

Herring to pay £450 to Pratt and £350 to Padwick. The

nature of the debt to Padwick was not proved in evidence,

as Padwick himself was not called. Palmer told Herring the

£450 was to settle the bill for which Cook had assigned his

horses. He wrote Pratt on the same day a letter in these

words :

—" Dear Sir,—you will place the £50 I have just paid

you, and the £450 you will receive from Mr. Herring, to-

gether £500, and the £200 you received on Saturday " (from

Pisher) "towards payment of my mother's acceptance for

£2,000 due 25th October.^^

Herring received upwards of £800, and paid part of it away

accordmg to Palmer's directions. Pratt gave Palmer credit for

the £450 ; but the £350 was not paid to Padwick, according

to Palmer's directions, as part was retained by Mr. Herring

for some debts due from Cook to him, and Herring received

less than he expected. In his reply the Attorney-General

said that the £350 intended to be paid to Padwick was on

account of a bet, and suggested that the motive was to keep

'° Fact tending to rebut inference from previous facts (section 9).

'^' Supports the inference suggested by the previous fact that

Palmer's doses caused Cook's illness (section 9).

"' Conduct and statement explanatory thereof (section 8, ex. 2).

Case of R. v. Palmer. g i

Padwick quiet as to tlie aute dated cheque for £1,000 given

to Espin on Padwick's account. There was no evidence of

this, and it is not of much importance. It was clearly in-

tended to he paid to Padwick on account, not of Cook(except possibly as to a small part), but of Palmer. Palmer

thus disposed, or attempted to dispose, in the course of

Monday, Nov. 19th, of the whole of Cook's winnings for his

own advantage.'^

This is a convenient place to mention the final result of

the transaction relating to the biU for £500, in which Cook

and Palmer were jointly interested. On the Friday when

Cook and Palmer dined together (Nov. 16), Cook wrote to

Fisher (his agent) in these words :—

" It is of very great im-

" portance to both Palmer and myself that a sum of £500" should be paid to a Mr. Pratt, of 5, Queen Street, Mayfair

;

" 300?. has been sent up to-night, and if you would be kind

" enough to pay the other £200 to-morrow, on the receipt of

" this, you wiU greatly oblige me. I will settle it on Monday" at TattersaU's." Fisher did pay the £200, expecting, as he

said, to settle Cook's account on the Monday, and repay him-

seK. On the Saturday, Nov. 17th (the day after the date of

the letter), " a person," said Pratt, "whose name I did not

" know, called on me with a cheque, and paid me 300?. on

" account of the prisoner ; that " (apparently the cheque, not

the 300?.) " was a cheque of Mr. Fisher's." When Pratt heard

of Cook's death he wrote to Palmer, saying, " The death of

" Mr. Cook wiU now compel you to look about as to the pay-

ment of the bUl for £500 due the 2nd of December." ^^

Great use was made of these letters by the defence. It was

argued that they proved that Cook was helping Palmer, and

was eager to relieve him from the pressure put on him by

Pratt ; that in consequence of this he not only took up the

£500 bill, but authorized Palmer to apply the £800 to similar

'" All this is Palmer's conduct, and is explanatory of it (section

7,9).

" Motive for not poisoning Cook (section 8).


purposes, and to get the amount settled by Herring, instead

of Fisher, so that Fisher might not stop out of it the £200

which he had advanced to Pratt. It was asked how it could

be Palmer's interest, on this supposition, that Cook should

die, especially as the first consequence of his death was Pratt's

application for the money due on the £500 bill.

These arguments were, no doubt, plausible ; and the fact

that Cook's death compelled Pratt to look to Palmer for the

payment of the £500 lends them weight ; but it may be

asked, on the other hand, why should Cook give away the

whole of his winnings to Palmer ? Why should Cook allow

Palmer to appropriate to the diminution of his own liabili-

ties the £200 which Fisher had advanced to the credit of the

biU on which both were liable ? Why should he join with

Palmer in a plan for defrauding Fisher of his security for this

advance ? No answer to any of these questions was suggested.

As to the £300, Cook's letter to Fisher says, " £300 lias ieen

sent up this evening." There was evidence that Pratt never

received it, for he applied to Palmer for the money on

Cook's death. Moreover Pratt said that on the Saturday he

did receive £300 on account of Palmer, which he placed to

the account of the forged acceptance for £2,000. Where did

Palmer get the money ? The suggestion of the prosecution

was that Cook gave it him to pay to Pratt on account of their

joint bUl, and that he paid it on his own account. This was

probably the true view of the case. The observation that Pratt,

on hearing of Cook's death, applied to Palmer to pay the £500

bill, is met by the reflection that that biU was genuine, and

collaterally secured by the assignment of the racehorses, and

that the other biU bore a forged acceptance, and must be

satisfied at all hazards. The result is that on the Monday

evening Palmer had the most imperious interest in Cook's

death, for he had robbed him of aU he had in the world, except

the equity of redemption in his two horses.

On Monday evening (Nov. 19th) Palmer returned to Eugeley,

and went to the shop of Mr. Salt, a surgeon there, about


nine p.m. He saw Newton, Salt's assistant, and asked him for

three grains of strychnine, which were accordingly given him."

Newton never mentioned this transaction tiU a day or two

before his examination as a witness in London, though he

was examined on the inquest. He explained this by saying

that there had been a quarrel between Palmer and Salt, his

(Newton's) master, and that he thought Salt would be dis-

pleased with him for having given Palmer anything. Nodoubt the concealment was improper, but nothing appeared on

cross-examination to suggest that the witness was willfully

perjured.

Cook had been much better throughout Monday, and on

Monday evening Mr. Bamford, who was attending him,

brought some piUs for him, which he left at the hotel. They

contained neither antimony nor strychnine. They were taken

up in the box in which they came to Cook's room by the

chambermaid, and were left there on the dressing-table about

eight o'clock. Palmer came (according to Barnes, the waitress)

between eight and nine, and Mills said she saw him sitting by

the fire between nine and ten.^^

If this evidence were believed he would have had an oppor-

tunityofsubstitutingpoisonedpillsforthosesentbyMr.Bamford

just after he had, according to Newton, procured strychnine.

The evidence, however, was contradicted by a witness called

for the prisoner, Jeremiah Smith the attorney. He said that

on the Monday evening, about ten minutes past ten, he saw

Palmer coining in a car from the directon of Stafford ; that

they then went up to Cook's room together, stayed two or three

minutes, and went with Smith to the house of old Mrs.

Palmer, his mother. Cook said "Bamford sent him some

pills, and he had taken them, and Palmer was late, intimating

that he should not have taken them if he had thought Palmer

would have called in before." If this evidence were believed

it would of course have proved that Cook took the piUs which

^ Preparation (section 8).

'" Opportunity. The rest is introductory (section 7, 9).


Bamford sent as he sent them5 Smith, however, was cross-

examined by the Attorney-General at great length. He

admitted with the greatest reluctance that he had witnessed

the assignment of a policy for £13,000 by Walter to William

Palmer ; that he wrote to an office to effect an insurance for

£10,000 on the life of Bates, who was Palmer's groom, at

£1 a week ; that he tried, after Walter Palmer's death, to get

his widow to give up her claim on the policy ; that he was

applied to to attest other proposals for insurances on Walter

Palmer's life for similar amounts ; and that he had got a cheque

for £5 for attesting the assignment.''^

Lord Campbell said of this witness in summing up, " Can

you believe a man who so disgraces himself in the witness-

box ? It is for you to say what faith you can place in a

witness, who, by his own admission, engaged in such fraudu-

lent proceedings."

It is curious that though the credit of this witness was so

much shaken in cross-examination, and though he was contra-

dicted both by MiUs and Newton, he must have been right

and they wrong as to the time when Palmer came down to

Eugeley that evening. Mr. Matthews, the inspector of police

at the Euston station, proved that the only train by which

Palmer could have left London after half-past two (when he met

Herring) started at five, and reached Stafford on the night in

question at a quarter to nine. It is about ten miles from

Stafford to Eugeley, so that he coixld not have got across by

the road in much less than an hour -^ yet Newton said he saw

him " about nine," and MiUs saw him " between nine and ten.''

Nothing, however, is more difficult than to speak accurately to

time ; on the other hand, if Smith spoke the truth Newton

"" Evidence against the existence of the fact last mentioned (sec-

tion 5).

"^ This cross-examination tended to test the veracity of the witness

and to test his credit (section 146).

•" Facts inconsistent with a relevant fact (section 11), and fixing

he time of the occurrence of a relevant fact (section 9).


could not have seen him at all that night, and Mills, if at aU,

must have seen him for a moment only in Smith's company.

Mills never mentioned Smith, and Smith would not venture to

swear that she or any one else saw him at the Talbot Arms. It

was a suspicious circumstance that Serjeant Shee did not open

Smith's evidence to the jury. An opportunity for perjury was

afforded by the mistake made by the witnesses as to the time,

which the defence were able to prove by the evidence of the

police inspector. If Smith were disposed to tell an untruth,

the knowledge of this fact would enable him to do so with an

appearance of plausibility.

Whatever view is taken as to the effect of this evidence it

was clearly proved that about the middle of the night between

Monday and Tuesday Cook had a violent attack of some sort.

About twelve, or a little before, his beU rang ; he screamed

violently. When Mills, the servant, came in he was sitting

up in bed, and asked that Palmer might be fetched at once.

He was beating the bedclothes ; he said he should suffocate if

he lay down. His head and neck and his whole body jumped

and jerked. He had great difficulty in breathing, and his eyes

protruded. His hand was stiff, and he asked to have it

rubbed. Palmer came in, and gave him a draught and some

pills. He snapped at the glass, and got both it and the spoon

between his teeth. He had also great difficulty in swallowiag

the piUs. After this he got more easy, and Palmer stayed by

him some time, sleeping in an easy chair.^

Great efforts were made in cross-examination to shake the

evidence of Mills by showing that she had altered the evidence

which she gave before the coroner, so as to make her descrip-

tion of the symptoms tally with those of poisoning by

strychnine, and also by showing that she had been drOled as

to the evidence which she was to give by persons connected

with the prosecution. She denied most of the suggestions

'" Effect of fact in issue, iiiz., the administration of poison (sec-

tion 7).


conveyed by the questions asked her, and explained others."

As to the differences between her evidence before the coroner

and at the trial, a witness (Mr. Gardner, an attorney) wascalled to show that the depositions were not properly taken

at the inquest. ''

On the following day, Tuesday, the 20th, Cook was a good

deal better. In the middle of the day he sent the boots to ask

Palmer if he might have a cup of coffee. Palmer said he

might, and came over, tasted a cup made by the servant, , and

took it from her hands to give it to Cook. This coffee was

afterwards thrown up.'^

A little before or after this, the exact hour is not important.

Palmer went to the shop of Hawkins, a druggist at Rugeley,

and was there served by his apprentice Eoberts with two

drachms of prussic acid, six grains of strychnine, and two

drachms of Batley's sedative.'* Whilst he was making the

purchase, Newton, from whom he had obtained the other

strychnine the night before, came in ; Palmer took him to the

door, saying he wished to speak to him; and when he was

there asked him a quesion about the farm of a Mr. Edwin

Salt—a matter with which he had nothing at aU to do.

Whilst they were there a third person came up and spoke to

Newton, on which Palmer went back into.Hawkins' shop and

took away the things, Newton not seeing what he took. The

obvious suggestion upon this is that Palmer wanted to pre-

vent Newton from seeing what he was about. No attempt

2' Former statements inconsistent with, evidence (section 155).

'* The depositions before the coroner would be a proper mode of

proof as being a record of a relevant fact made by a public servant

in the discharge of his official duty (section 35), and any document

purporting to be such a deposition would on production be presumed

to be genuine, and the evidence would be presumed to be duly taken

(sections 79 and 80), but this might be rebutted (section 8), defi-

nition of shall presume.'

=^ Part of the transaction of poisoning (section 8).



even was made to shake, or in any way discredit, Eoberts the

apprentice.^'

At about four p.m. Mr. Jones, the friend to whom Palmer

had written, arrived from Lutterworth.'^ He examined Cook

in Palmer's presence, and remarked that he had not the tongue

of a bilious patient ; to which Palmer replied, " You should

have seen it before." Cook appeared to be better during the

Tuesday, and was in good spirits.'* At about seven p.m. Mr.

Bamford came in, and Cook told him in Palmer's presence

that he objected to the pills, as they had made him ill the

night before. The three medical men then had a private con-

sultation. Palmer proposed that Bamford should make up

the pills as on the night before, and that Jones should not tell

Cook what they were made of, as he objected to the morphine

which they contained. Bamford agreed, and Palmer went up

to his house with him and got the pills, and was present whilst

they were made up, put into a pill-box, and directed. Hetook them away with him between seven and eight.'^ Cook

was well and comfortable all the evening ; he had no bilious

symptoms, no vomiting, and no diarrhoea.'*

Towards eleven Palmer came with a box of pills directed in

Bamford's hand. He called Jones's attention to the goodness

of the handwriting for a man of eighty.** It was suggested by

the prosecution that the reason for this was to impress Jones

with the fact that the pills had been made up by Bamford.

With reference to Smith's evidence it is remarkable that

Bamford on the second night sent the pills, not " between

nine and ten," but at eleven. Palmer pressed Cook to take

the pills, which at first he refused to do, as they had made

him so iU the night before. At last he did so, and immediately

afterwards vomited. Jones and Palmer both examined to see

whether the pills had been thrown up, and they found that

'^ Condact (section 8).'' Introductory (section 9).

3* State of things under which Cook was poisoned (section 7).

'5 Preparation (section 8).

'" Conduct and statements (section 8, ex. 2).

H


they had not. This was about eleven. Jones then had his

supper, and went to bed in Cook's room about twelve. "When

he had been in bed a short time, perhaps ten minutes, Cook

started up and called out, " Doctor, get up ; I am going to be

lU ; ring the beU for Mr. Palmer." He also said, " Eub myneck." The back of his neck was stiff and hard. MOls ran

across the road to Palmer's and rang the beU. Palmer imme-

diately came to the bedroom window and said he would come

at once. Two minutes afterwards he was in Cook's room, and

said he had never dressed so quick in his life. He was dressed

as usual. The suggestion upon this was that he had been

sitting up expecting to be called.'''^

By the time of Palmer's arrival Cook was very ill. Jones,

Elizabeth Mills, and Palmer were in the room, and Barnes

stood at the door. The muscles of his neck were stiff; he

screamed loudly. Palmer gave him what he said were two

ammonia pills. Immediately afterwards—^too soon for the

pUls to have any effect—he was dreadfully convulsed. . He

said, when he began to be convulsed, " Eaise me up, or I shall

be suffocated." Palmer and Jones tried to do soj but could

not, as the limbs were rigid. He then asked to be turned

over, which was done. His heart began to beat weakly.

Jones asked Palmer to get some ammonia to try to stimulate

it. He fetched a bottle, and was absent about a minute for

that purpose. When he came back Cook was almost dead,

and he died in a few minutes, quite quietly. The whole

attack lasted about ten minutes. The body was twisted back

into the shape of a bow, and would have rested on the head

and heels, had it been laid on its back. When the body was

laid out, it was very stiff. The arms could not be kept down by

the sides till they were tied behind the back with tape. The

feet also had to be tied, and the fingers of one hand were very

stiff, the hand being clenched. This was about one a.m., half

or three quarters of an hour after the death.''

^^ Fact in issue (section 16). Conduct (section 8).

3^ Cook's death, in all its detail, was a fact in issue (section 6).

Case of R, v. Palmer. 99

As soon as Gook was dead, Jones went out to speak to

the housekeeper, leaving Palmer alone with the body. WhenJones left the room he sent the servant Mills in, and

she saw Palmer searching the pockets of Cook's coat

and searching also under the pillow and bolster. Jones

shortly afterwards returned, and Palmer told him that

as Cook's nearest friend, he (Jones) ought to take possession

of his property. He accordingly took possession of his watch

and purse, containing five sovereigns and five shillings. Hefound no other money. Palmer said, " Mr. Cook's death is a

bad thing for me, as I am responsible for £3,000 or £4,000 ;

and I hope Mr. Cook's friends will not let me lose it. If

they do not assist me, all my horses will be seized." The

betting-book was mentioned. Palmer said, " It will be no

use to any one," and added that it would probably be

found.*'

On "Wednesday, the 21st inst., Mr. Wetherby, the London

racing agent, who kept a sort of bank for sporting men, re-

ceived from Palmer a letter enclosing a cheque for £350

against the amount of the Shrewsbury stakes (£381), which

Wetherby was to receive for him. This cheque had been

drawn on the Tuesday, about seven o'clock in the evening,

under pecuL'ar circumstances. Palmer sent for Mr. Cheshire,

the postmaster at Eugeley, telling him to bring a receipt

stamp, and when he arrived asked him to write out, from a

copy which he produced, a cheque by Cook on Wetherby.

He said it was for money which Cook owed him, and that he

was going to take it over for Cook to sign. Cheshire wrote

out the body of the cheque, and Palmer took it away. When

Mr. Wetherby received the cheque, the stakes had not been

paid to Cook's credit. He accordingly returned the cheque

to Palmer, to whom the prosecution gave notice to produce it

at the trial.''" It was called for, but not produced.*' This

'^ Conduct (section 8).

" Conduct (section 8).

*' See section 66 as to notice to produce.

loo Case of R. v. Palmer.

was one of the strongest facts against Palmer in the whole of

the case,. If he had produced the cheque, and if it had

appeared to have been really signed by Cook, it would have

shown that Cook, for some reason or other, had made over

his stakes to Palmer, and this would have destroyed the

strong presumption arising from Palmer's appropriation of

the bets to his own purposes. In fact, it would have greatly

weakened and almost upset the case as to the motive. On

the other hand, the non-production of the cheque amounted

to an admission that it was a forgery ; and if that were so.

Palmer was forging his friend's name for the purpose of steal-

ing his stakes at the time when to all outward appearance

there was every prospect of his speedy recovery which must

result in the detection of the fraud. If he knew that Cook

would die that night, this was natural. On any other sup-

position it was LQConceivable rashness.'"

Either on Thursday, 22nd, or Priday, 23rd, Palmer sent for

Cheshire again, and produced a paper which he said Cook

had given to him some days before. The paper purported to

be aji acknowledgment that certain biUs—the particulars of

which were stated—were all for Cook's benefit, and not for

Palmer's. The amount was considerable, as at least one item

was for £1,000, and another for £500. This document pur-

ported to be signed by Cook, and Palmer wished Cheshire to

attest Cook's execution of it, which he refused to do. This

document was called for at the trial, and not produced. The

same observations apply to it as to the cheque.'"''^''

"

Evidence was further given to show that Palmer, who,

shortly before, had but £9 6s, at the bank, and had borrowed

£25 to go to Shrewsbury, paid away large sums of money

soon after Cook's death. He paid Pratt £100 on the 24th

;

he paid a farmer named SpUsbury £46 2s. with a Bank of

England note for £50 on the 22nd ; and Bown, a draper, a

sum of £60 or thereabouts in two £50 notes, on the 20th,"

*^ Ab to these inferences see section 114, illust. g.

*^ Conduct (section 8).

Case ofR. V. Palmer. loi

The general result of these money transactions is, that Palmer

appropriated to his own use aU. Cook's bets ; that he tried to

appropriate his stakes ; and that shortly before, or just after

his death, he was in possession of between £400 and £600, of

which he paid Pratt £400, though very shortly before he was

being pressed for money.

On Wednesday, November 21st, Mr. Jones went up to

London, and informed Mr. Stephens, Cook's step-father, of his

step-son's death. Mr. Stephens went to Lutterworth, found a

will by which Cook appointed him his executor, and then

went on to Eugeley, where he arrived about the middle of the

day on Thursday."* He asked Palmer for information about

Cook's affairs, and he replied, " There are £4,000 worth of bills

out of his, and I am sorry to say my name is to them ; but

I have got a paper drawn up by a lawyer and signed by

Mr. Cook to show that I never had any benefit from them."

Mr. Stephens said that at all events he must be buried.

Palmer offered to do so himself, and said that the body ought

to be fastened up as soon as possible. The conversation then

ended for the time. Palmer went out, and without authority

from Mr. ^Stephens ordered a shell and a strong oak

cofEin."^

In the afternoon Mr. Stephens, Palmer, Jones, and a Mr.

Bradford, Cook's brother-in-law, dined together, and after

dinner Mr. Stephens desired Mr. Jones to fetch Cook's betting-

book. Jones went to look for it, but was unable to find it.

The betting-book had last been seen by the chambermaid.

Mills, who gave it to Cook in bed on the Monday night, when

he took a stamp from a pocket at the end of it. On hearing,

that the book could not be found. Palmer said it was of no

manner of use. Mr. Stephens said he understood Cook had

won a great deal of money at Shrewsbury, to which Palmer

replied, " It's no use, I assure you ; when a man dies, his bets

** Introductory and explanatory (section 9).

*5 Admission and conduct (sections 17, 18; section 8).

^02 Case ofR. v. Palmer.

are done with." He did not mention the fact that Cook's

bets had been paid to Herring on the Monday. Mr. Stephens

then said that the book must be found, and Palmer answered

that no doubt it would be.^" Before leaving the inn Mr. Ste-

phens went to look at the body, before the coffin was fastened

and observed that both hands were clenched. He returned

at once to town and went to his attorney. He returned to

Eugeley on Saturday, the 24th, and informed Palmer of his

intention to have a post-mortem examination, which took

place on Monday, 26th.''^

The post-mortem examination was conducted in the pre-

sence of Palmer by Dr. Harland, Mr. Devonshire, a medical

student, assisting Dr. Monkton, and Mr. Newton. The heart

was contracted and empty. There were numerous small

yellowish white spots, about the size of mustard-seed, at the

larger end of the stomach. The upper part of the spinal

cord was in its natural state; the lower part was not

examined tUl the 25th January, when certain granules were

found. There were many follicles on the tongue, apparently

of long standing. The lungs appeared healthy to Dr. Harland,

but Mr. Devonshire thought that there was some conges-

tion.** Some points in Palmer's behaviour, both before and

after the post-mortem examination, attracted notice. Newton

said that on the Sunday night he sent for him, and asked

what dose of strychnine would kill a dog. Newton said a

grain. He asked whether it would be found in the stomach,

and what would be the appearance of the stomach after

death. Newton said there would be no inflammation, and he

did not think it would be found. Newton thought he replied,

" It's all right," as if speaking to himself, and added that he

snapped his fingers. Whilst Devonshire was opening the

40 These facts and statements together make it highly probable

that Pahner stole the betting-book, which would be relevant as con-

duct (sections 8, 11).

4' Introductory to what follows (section 9).

*' Facts supporting opinions of experts (section 46).

Case ofR.\. Palmer. 103

stomacli Palmer -pushed against him, and part of the contents

of the stomach was spilt. Nothing particular being found

in the stomach, Palmer observed to Bamford, " They will not

hang us yet." As they were all crowding together to see

what passed, the push might have been an accident ; and as

Mr. Stephens' suspicions were weU known, the remark was

natural, though coarse. After the examination was com-

pleted, the intestines, &c., were put iato a jar, over the top of

which were tied two bladders. Palmer removed the jar from

the table to a place near the door, and when it was missed

said he thought it would be more convenient. When re-

placed it was found that a slit had been cut through both the

bladders.*^

After the examination Mr. Stephens and an attorney's

clerk took the jars containing the viscera, &c., in a fly to

Stafford.^" Palmer asked the postboy if he was going to

drive them to Stafford ? The postboy said, " I believe I ani."

Palmer said, " Is it Mr. Stephens you are going to take 1

"

He said, " I believe it is." Palmer said, " I suppose you are

going to take the jars ? " He said, " I am." Palmer asked

if he would upset them ? He said, " I shall not." Palmer

said if he would there was a £10 note for him. He also said

something about its being " a humbugging concern."^' Some

confusion was introduced into this evidence by the cross-

examination, which tended to show that Palmer's object was

to upset Mr. Stephens and not the jars, but at last the postboy

(J. Myatt) repeated it as given above. Indeed, it makes little

difference whether Palmer wished to upset Stephens or the

jars, as they were aU in one fly, and must be upset together

if at aU.

Shortly after the post-mortem examination an inquest was

held before Mr. Ward, the coroner. It began on the 29th

November and ended on the 5th December. On Sunday,

^^ Conduct (section 8).

'" Introductory (section 9).

"''ir^l,. '' Conduct (section 8).

I04 Case of R. v. Palmer.

3rd December, Palmer asked Cheshire, the postmaster, " if he

had anything fresh." Cheshire replied that he could not

open a letter. Afterwards, however, he did open a letter

from Dr. Alfred Taylor, who had analyzed the contents of the

stomach, &c., to Mr. Gardiner, the attorney for the prosecution,

and informed Palmer that Dr. Taylor said in that letter that

no traces of strychnia were found. Palmer said he knew

they would not, and he was quite innocent. Soon afterwards

Palmer wrote to Mr. Ward, suggesting various questions to

be put to witnesses at the inquest, and saying that he knew

Dr. Taylor had told Mr. Gardiner there were no traces of

strychnia, prussic acid, or opium. A few days before this, on

the 1st December, Palmer had sent Mr. Ward, as a present, a

codfish, a barrel of oysters, a brace of pheasants, and a tur-

key.*^ These circumstances certainly prove improper and

even criminal conduct. Cheshire was imprisoned for his

offence, and Lord Campbell spoke in severe terms of the

conduct of the coroner ; but a bad and unscrupulous man, as

Palmer evidently was, might act in the manner described, even

though he was innocent of the particular offence charged.

A medical book found in Palmer's possession had in it

some MS. notes on the subject of strychnine, one of which

was, "It kills by causing tetanic contraction of the respi-

ratory muscles." It was not suggested that this memorandum

was made for any particular purpose. It was used merely to

show that Palmer was acquainted with the properties and

effects of strychnine.^^

This completes the evidence as to Palmer's behaviour

before, at, and after the death of Cook. It proves beyond all

question that, having the strongest possible motive to obtain

at once a considerable sum of money, he robbed his friend of

the whole of the bets paid to Herring on the Monday by a

series of ingenious devices, and that he tried to rob him of the

stakes; it raises the strongest presumption that he robbed

'* Conduct and facts introductory thereto (sections 8/ 9).

'^ Pact showing knowledge (section 14).


Cook of the £300 which, as Cook supposed, was sent up to

Pratt on the 16th, and that he stole the money which he had

on his person, and had received at Shrewsbury ; it proves

that he forged his name the night before he died, and that he

tried to procure a fraudulent attestation to another forged docu-

ment relating to his affairs the day after he died. It also

proves that he had every opportunity of administering poison

to Cook, that he told repeated lies about his state of health,

and that he purchased deadly poison, for which he had no

lawful use, on two separate occasions shortly before two

paroxysms of a similar character to each other, the second of

which deprived him of life.

The rest of the evidence was directed to prove that the

symptoms of which Cook died were those of poisoning by

strychnine, and that antimony, which was never prescribed

for him, was found in his body. Evidence was also given in

tne course of the trial as to the state of Cook's health.

At the time of his death Cook was about twenty-eight

years of age. Both his father and mother died young, and

his sister and half-brother were not robust. He inherited

from his father about £12,000 and was articled to a solicitor.

Instead of following up that profession he betook himself to

sporting pursuits, and appears to have led a rather dissipated

life. He suffered from sjrphilis, and was in the habit of occa-

sionally consulting Dr. Savage on the state of his health.

Dr. Savage saw him in November, 1854, in May, in June,

towards the end of October, and again early in November

1855, about a fortnight before his death, so that he had ample

means of giving satisfactory evidence on the subject, especially

as he examined him carefuUy whenever he came. Dr. Savage

said that he had two shallow ulcers on the tongue corre-

sponding to bad teeth ; that he had also a sore throat, one of his

tonsils being very large, red, and tender, and the other very

small. Cook himself was afraid that these symptoms were

syphilitic, but Dr. Savage thought decidedly that they were

not. He also noticed " an indication of pulmonary affection

1°^ Case ofR. v. Palmer.

under the left lung." Wishing to get him away from his turf

associates, Dr. Savage recommended him to go ahroad for the

winter. His general health Dr. Savage considered good for a

man who was not robust. Mr. Stephens said that when he

last saw him alive he was looking better than he had looked

for some time, and on his remarking, "You do not look

anything of an invalid now," Cook struck himself on the

breast, and said he was quite well. His friend, Mr. Jones

also said that his health was generally good, though he was

not very robust, and that he both hunted and played at

cricket.^*

On the other hand, witnesses were called for the prisoner

who gave a different account of his health. A Mr. Sargent

said he was with him at Liverpool a week before the Shrews-

bury races, that he called his attention to the state of his

mouth and throat, and the back part of his tongue was in a

complete state of ulcer. " I said," added the witness, " I was

surprised he could eat and drink in the state his mouth

was in. He said he had been in that state for weeks and

months, and now he did not take notice of it." This was

certainly not consistent with Dr. Savage's evidence. ^*

Such being the state of health of Cook at the time of his

death, the next question was as to its cause. The prosecution

contended that the symptoms which attended it proved that

he was poisoned by strichnia. Several eminent physicians

and surgeons—Mr. Curling, Dr. Todd, Sir Benjamin Brodie,

Mr. Daniel, and Mr. Solly—gave an account of the general

character and causes of the disease of tetanus. Mr. Curling

said that tetanus consists of spasmodic affection of the volun-

tary muscles of the body which at last ends in death, produced

either by suffocation caused by the closing of the windpipe

or by the wearing effect of the severe and painful struggles

which the muscular spasms produce. Of this disease there

are three forms,—idiopathic tetanus, which is produced with-

'* State of things uuder which crime was committed (section 7).


out any assignable external cause ; traumatic tetanus, wliicli

results from wounds ; and the tetanus which is produced bythe administration of strychnia, bruschia, and nux vomica, aUof which are different forms of the same poison. Idiopathic

tetanus is a very rare disease in England. Sir Benjamin

Brodie had seen only one doubtful case of it. Mr. Daniel,

who for twenty-eight years was surgeon to the Bristol Hos-

pital, saw only two. Mr. Nunneley, professor of surgery at

Leeds, had seen four. In India, however, it is comparatively

common: Mr. Jackson, in twenty-five years' practice there,

saw about forty cases. It was agreed on all hands, that

though the exciting cause of the two diseases is different,

their symptoms are the same. They were described in similar

terms by several of the witnesses. Dr. Todd said the disease

begins with stiffness about the jaw, the symptoms then extend

themselves to the other muscles of the trunk and body. They

gradually develop themselves. When once the disease has

begun there are remissions of severity, but not complete inter-

mission of the symptoms. In acute cases the disease termi-

nates in three or four days. In chronic cases it will go on

for as much as three weeks. There was some question as to

what was the shortest case upon record. In a case mentioned

by one of the prisoner's witnesses, Mr. Eoss, the patient was

said to have been attacked in the morning, either at eleven or

some hours earlier, it did not clearly appear which, and to

have died at half-past seven in the evening. This was the

shortest case specified on either side, though its duration was

not accurately determined. As a rule, however, tetanus,

whether traumatic or idiopathic, was said to be a matter not

of minutes, or even of hours, but of days.^^

Such beiug the nature of tetanus, traumatic and idiopathic,

four questions arose. Did Cook die of tetanus ? Did he die

of traumatic tetanus ? Did he die of idiopathic tetanus ? Did

^* Opinions of experts, and facts on which they were founded

(sections 45, 46). The rest of the evidence falls under this head.

ioS Case ofR.v. Palmer.

he die of the tetanus produced by strychnia ? The case for

the prosecution upon these questions was, first, that he did die

of tetanus. Mr. Curling said no doubt there was spasmodic

action of the muscles (which was his definition of tetanus) in

Cook's case ; and even Mr. Nunnely, the principal witness for

the prisoner, who contended that the death of Cook was caused

neither by tetanus in its ordinary forms nor by the tetanus of

strychnia, admitted that the paroxysm described by Mr. Jones

was " very like " the paroxysm of tetanus. The close general

resemblance of the symptoms to those of tetanus was indeed

assumed by aU the witnesses on both sides, as was proved

by the various distinctions which were stated on the side

of the Crown between Cook's symptoms and those of

traumatic and idiopathic tetanus, and on the side of the

prisoner between Cook's symptoms and the symptoms

of the tetanus of strychnia. It might, therefore, be con-

sidered to be established that he died of tetanus in some

form or other.

The next point asserted by the prosecution was, that he did

not die of traumatic or idiopathic tetanus, because there was

no wound on his body, and also because the course of the

symptoms was different. They further asserted that the

symptoms were those of poison by strychnia.

Upon these points the evidence was as foUows :—Mr.

Curling was asked, Q. " Were the symptoms consistent with" any form of traumatic tetanus which has ever come under

" your knowledge or observation ? " He answered, " 'No."

Q. " What distinguished them from the cases of traumatic

" tetanus which you have described?" A. "There was the

" sudden onset of the fatal symptoms. In aU cases that have

" fallen under my notice the disease has been preceded by the

" milder symptoms of tetanus." Q. " Gradually progressing to

" their complete development, and completion, and death ?

"

A. " Yes." He also mentioned "the sudden onset and rapid

subsidence of the spasms " as inconsistent with the theory of

either traumatic or idiopathic tetanus ; and he said he had


never known a case of tetanus whieli ran its course in less

than eight or ten hours. In the one case which occupied so

short a time, the true period could not be ascertaiaed. In

general, the time required was from one to several days. Sir

Benjamin Brodie was asked, " In your opinion, are the symp-" toms those of traumatic tetanus or not ? " He replied, " As" far as the spasmodic contraction of the muscles goes, the

" symptoms resemble those of traumatic tetanus ; as to the

" course which the symptoms took, that was entirely dif-

" ferent." He added, " The symptoms of traumatic tetanus

" always begin, as far as I have seen, very gradually, the

" stiffness of the lower jaw being, I believe, the symptom" first complained of—at least, so it has been in my experience

;

" then the contraction of the muscles of the back is always

" a later symptom, generally much later; the muscles of the

" extremities are affected in a much less degree than those of

" the neck and trunk, except in some cases, where the injury

" has been in a limb, and an early symptom has been a con-

" traction of the muscles of that limb. I do not myself recol-

" lect a case in which in ordinary tetanus there was that

" contraction of the muscles of the hand which I under-

" stand was stated to have existed in this instance. The" ordinary tetanus rarely runs its course in less that two or

" three days, and often is protracted to a much longer

" period ; I know one case only in which the disease was said

" to have terminated in twelve hours." He said, in conclu-

sion, " I never saw a case in which the symptoms described

" arose from any disease ; when I say that, of course I refer

" not to the particular symptoms, but to the general course

" which the symptoms took." Mr. Daniel being asked whether

the symptoms of Cook could be referred to idiopathic or trau-

matic tetanus, said, " In my judgment they could not." Healso said that he should repeat Sir Benjamia Brodie's words

if he were to enumerate the distinctions. Mr. SoUy said

that the symptoms were not referable to any disease he ever

witnessed ; and Dr. Todd said, " I think the symptoms were

I lo Case ofR. v. Palmer.

those of strychnia." The same opinion was expressed with

equal confidence by Dr. Alfred Taylor, Dr. Eees, and

Mr. Christison.^*

In order to support this general evidence witnesses were

called who gave account of three fatal cases of poisoning by

strychnia, and of one case in which the patient recovered.

The first of the fatal cases was that of Agnes Trench, or

Senet, who was accidentally poisoned at Glasgow Infirmary, in

1845, by some piUs which she took, and which were intended

for a j^aralytic patient. According to the nurse, the girl was

'

taken Ul three quarters of an hour, according to one of the

physicians (who, however, was not present) twenty minutes

after she swallowed the pills. She fell suddenly back on the

floor ; when her clothes were cut off she was stiff, "just like a

poker," her arms were stretched out, her hands clenched;

she vomited slightly ; she had no_lockjaw ; there was a re-

traction of the mouth and face, the head was bent back, the

spine curved. She went into severe paroxysms every few

seconds, and died about an hour after the symptoms began.

She was perfectly conscious. The heart was found empty on

examination.

The second case described was that of Mrs. Serjeantson

Smyth, who was accidentally poisoned at Eomsey in 1848, by

strychnine put into a dose of ordinary medicine instead of

salicine. She took the dose about five or ten minutes after

seven ; in five or ten minutes more the servant was alarmed

by a violent ringing of the beU. She found her mistress

leaning on a chair, went out to send for a doctor, and on her

return found her on the floor. She screamed loudly. She

asked to have her legs pulled straight and to have water thrown

over her. A few minutes before she died she said, "Turn

me over ;" she was turned over, and died very quietly almost

immediately. The fit lasted about an hour. The hands were

clenched, the feet contracted, and on a post-mortem examina-

tion the heart was found empty.

The third case was that of Mrs. Dove, who was poisoned

Case of R. v. Palmer. 1 1 j

at Leeds by her husband (for which he was afterwards hanged)

in February, 1856. She had five attacks on the MondayWednesday, Thursday, Friday, and Saturday of the weekbeginning February 24th. She had prickings in the legs and

twitchings in the hands. She asked her husband to rub her

arms and legs before the spasms came on, but when they were

strong she could not bear her legs to be touched. The fatal

attack in her case lasted two hours and a half. The hands

were semi-bent, the feet strongly arched. The lungs were

congested, the spinal cord was also much congested. The head

being opened first, a good deal of blood flowed out, part of

which might flow from the heart.

The case in which the patient recovered was that of a

paralytic patient of Mr. Moore's. He took an over dose of

strychnia, and ia about three quarters of an hour Mr. Moore

found him stiffened in every limb. His head was drawn

back ; he was screaming and " frequently requesting that we

should turn him, move him, rub him." His spine was drawn

back. He snapped at a spoon with which an attempt was

made to administer medicine, and was perfectly conscious

during the whole time.

Dr. Taylor and Dr. Owen Eees examined Cook's body.

They found no strychnia, but they found antimony in the

liver, the left kidney, the spleen, and also in the blood.

The case for the prosecution upon this evidence was, that

the symptoms were those of tetanus, and of tetanus produced

by strychnia. The case for the prisoner was, first, that several

of the symptoms observed were inconsistent with strychnia

;

and secondly, that all of them might be explained on other

hypotheses. Their evidence was given ia part by their own

witnesses, and in part by the witnesses for the Crown in cross-

examination. The replies suggested by the Crown were

founded partly on the evidence of their own witnesses

given by way of anticipation, and partly by the evidence

obtained from the witnesses for the prisoner on cross-

examination.


The first and most conspicuous argument on behalf of the

prisoner was, that the fact that no strychnia was discovered

by Dr. Taylor and Dr. Eees was inconsistent with the theory

that any had been administered. The material part of Dr.

Taylor's evidence upon this point was, that he had examined

the stomach and intestines of Cook for a variety of poisons,

strychnia among others, without success. The contents of

the stomach were gone, though the contents of the intestines

remained, and the stomach itself had been cut open from end

to end, and turned inside out, and the mucous surface on

which poison, if present, would have been found was rubbing

against the surface of the intestines. This Dr. Taylor con-

sidered a most unfavourable condition for the discovery of

poison, and Mr. Christison agreed with him. Several of the

prisoner's witnesses, on the contrary—Mr. Nunneley, Dr.

Letheby, and Mr. Eogers,—thought that it would only increase

thedif&culty of the operation, and not destroy its chance of

success.

Apart from this Dr. Taylor expressed his opinion that from

the way in which strychnia acts, it might be impossible to

discover it even if the circumstances were favourable. The

mode of testing its presence in the stomach is to treat the

stomach in various ways, until at last a residue is obtained

which, upon the application of certain chemical ingredients,

changes its colour if strychnia is present. All the witnesses

agreed that strychnia acts by absorption—that is, it is taken

up from the stomach by the absorbents, thence it passes into

the blood, thence into the solid part of the body, and at some

stage of its progress causes death by its action on the

nerves and muscles. Its noxious effects do not begin tiU

it has left the stomach. From this Dr. Taylor argued that if

a minimum dose were administered, none would be left in the

stomach at the time of death, and therefore none could be

discovered there. He also said that if the strychnia got into

the blood before examination, it would be diffused over the

whole mass, and so no more than an extremely minute portion

Case ofR. v. Palmer. i ^3

would be present in any given quantity. If the dose were

half a grain, and there were twenty-five pounds of blood in the

body, each pound of blood would contain only one-fiftieth of

a grain. He was also of opinion that the strychnia undergoes

some chemical change by reason of which its presence in

small quantities in the tissues cannot be detected. In

short, the result of his evidence was, that if a minimum

dose were administered, it was uncertain whether strychnia

would be present in the stomach after death, and that if

it was not in the stomach, there was no certainty that it could

be found at alL He added that he considered the colour tests

fallacious, because the colours might be produced by other

substances.

Dr. Taylor further detailed some experiments which he had

tried upon animals jointly with Dr. Eees, for the purpose of

ascertaining whether strychnia could always be detected. Hepoisoned four rabbits with strychnia, and applied the tests for

strychnia to their bodies. In one case, where two grains had

been administered at intervals, he obtained proof of the presence

of strychnia both by a bitter taste and by the colour. In a

case where one grain was administered, he obtained the taste

but not the colour. In the other two cases, where he admin-

istered one grain and half a grain respectively, he obtained

no indications at all of the presence of strychnia. These

experiments proved to demonstration that the fact that lie, did

not discover strychnia did not prove that no strychnia was

present in Cook's body.

Mr. Nunneley, Mr. Herapath, Mr. Eogers, Dr. Letheby

and Mr. Wrightson contradicted Dr. Taylor and Dr. Eees

upon this part of their evidence. They denied the theory

that strychniae undergoes any change in the blood, and they

professed their own ability to discover its presence even in

most minute quantities in any body into which it had been

introduced, and their belief that the colour tests were satis-

factory. Mr. Herapath said that he had found strychnine in

the blood and in a small part of the liver of a dog poisoned

I


by it ; and he also said that lie could detect the fifty-thousandth

part of a grain if it were unmixed with organic matter. Mr.

Wrightson (who was highly complimented by Lord Campbell

for the way in which he gave his evidence) also said that he

should expect to find strychnia if it were present, and that he

had found it in the tissues of an animal poisoned by it.

Here, no doubt^ there was a considerable conflict of evidence

upon a point on which it was very difficult for unscientific

persons to pretend to have any opinion. The evidence

given for the prisoner however tended to prove not so much

that there was no strychnia in Cook's body, as that Dr. Taylor

ought to have found it if there was. In other words, it had

less to do with the guilt or innocence of the prisoner, than

with the question whether Mr. Nunneley and Mr. Herapath

were or were not better analytical chemists than Dr. Taylor.

The evidence could not even be considered to shake Dr.

Taylor's credit, for no part of the case rested on his evidence

except the discovery of the antimony, as to which he was

corroborated by Mr. Brande, and was not contradicted by

the prisoner's witnesses. His opinion as to the natuare of

Cook's symptoms was shared by many other medical witnesses

of the highest eminence, whose credit was altogether unim-

peached. The prisoner's counsel were placed in a curious

difficulty by this state of the question. They had to attack

and did attack Dr. Taylor's credit vigorously for the purpose

of rebutting his conclusion that Cook might have been

poisoned by strychnine;yet they had also to maintain his

credit as a skilful analytical chemist, for if they destroyed it,

the fact that he did not find strychnine went for nothing. This

dilemma was fatal. To admit his skill was to admit ' their

client's guilt. To deny it was to destroy the value of nearly

all their own evidence. The only possible course was to

admit his skill and deny his good faith, but this too was use-

less for the reason just mentioned.

Another argument used on behalf of the prisoner was that

some of the symptoms of Cook's death were inconsistent with


poisoning by strychnine. Mr. Nuniieley and Dr. Letheby

thought that the facts that Cook sat up in Bed when the

attack came on, that he moved his hands, and swallowed, and

asked to be rubbed and moved, showed more power of volun-

tary motion than was consistent with poisoning by strychnia.

But Mrs. Serjeantson Smyth got out of bed and rang the bell,

and both she, Mrs. Dove, and Mr. Moore's patient begged to

be rubbed and moved before the spasms came on. Cook's

movements were before the paroxysm set in, and the first

paroxysm ended his life.

Mr. Nunneley referred to the fact that the heart was

empty, and said that, in his experiments, he always found

that the right side of the heart of the poisoned animals was

full.

Both in Mrs. Smyth's case, however, and in that of the girl

Senet, the heart was found empty ; and in Mrs. Smyth's case

the chest and abdomen were opened first, so that the heart

was not emptied by the opening of the head. Mr. Christison

said that if a man died of spasms of the heart, the heart would

be emptied by them, and would be found empty after death,

so that the presence or absence of the blood proved nothing.

Mr. Nunneley and Dr. Letheby also referred to the length

of time before the symptoms appeared, as inconsistent with

poisoning by strychnine. The time between the adminis-

tration of the pills and the paroxysm was not accurately

measured. It might have been an hour, or a little less, or

more ; but the poison, if present at all, was administered in

pills, which would not begin to operate till they were broken

up, and the rapidity with which they would be broken up

would depend upon the materials of which they were made

Mr. Christison said that if the pOls were made up with

resinous materials, such as are within the knowledge of every

medical man, their operation would be delayed. He added,

" I do not think we can fix, with our present knowledge, the

"precise time for the poison beginning to operate." Ac-

cording to the account of one witness in Agnes French's case,

1 16 Case ofR. v. Palmer.

the poison did not operate for three quarters of an hour,

though probably her recollection of the time was not very-

accurate after ten years. Dr. Taylor also referred (in cross-

examination) to cases in which an hour and a half, or even

two hours elapsed, before the symptoms showed themselves.

These were the principal points in Cook's symptoms said

to be inconsistent with the administration of strychnia. All

of them appear to have been satisfactorily answered. Indeed,

the inconsistency of the symptoms with strychnia was faintly

maintained. The defence turned rather on the possibility of

showing that they were consistent with some other disease.

In order to make out this point various suggestions were

made. In the cross-examination of the diEferent witnesses for

the Crown, it was frequently suggested that the case was. one

of traumatic tetanus, caused by syphilitic sores ; but to this

there were three fatal objections. In the first place, there

were no syphilitic sores ; in the second place, no witness for

the prisoner said that he thought that it was a case of trau-

matic tetanus; and in the third place, several doctors of great

experience in respect of syphilis—especially Dr. Lee, the

physician to the Lock Hospital—declared that they never

heard of syphilitic sores producing tetanus. Two witnesses

for the prisoner were called to show that a man died of teta-

nus who had sores on his elbow and elsewhere, which were

possibly syphilitic ; but it did not appear whether he had

rubbed or hurt them, and Cook had no symptoms of the sort.

Another theory was that the death was caused by general

convulsions. This was advanced by Mr. Nunneley ; but he

was unable to mention any case in which general convulsions

had produced death without destroying consciousness. He said

vaguely he had heard of such cases, but had never met with

one. Dr. McDonald, of Garnkirk, near Glasgow, said that

he considered the case to be one of " epileptic convulsions

with tetanic complications." But he also failed to mention

an instance in which epilepsy did not destroy consciousness.

This witness assigned the most extraordinary reasons for sup-

Case of R. V. Palmer. 1 1

7

posing that it was a case of this form of epilepsy. He said

that the fit might have been caused by sexual excitement,

though the man was ill at Eugeley for nearly a week before

his death ; and that it was within the range of possibility that

sexual intercourse might produce a convulsion fit after an

interval of a fortnight.

Both Mr. Nunneley and Dr. McDonald were cross-examined

with great closeness. Each of them was taken separately

through all the various syniptoms of the case, and asked to

point out how they differed from those of poisoning by

strychnia, and what were the reasons why they should be

supposed to arise from anything else. After a great deal of

trouble, Mr. Nunneley was forced to admit that the symptoms

of the paroxysm were " very like " those of strychnia, and that

the various predisposing causes which he mentioned as likely

to produce convulsions could not be shown to have existed.

He said, for instance, that excitement and depression of spirits

might predispose to convulsions; but the only excitement

under which Cook had laboured was on winning the race a

week before ; and as for depression of spirits, he was laugh-

ing and joking with Mr. Jones a few hours before his death.

Dr. McDonald was equally unable to give a satisfactory

explanation of these difficulties. It is impossible by any

abridgment to convey the full effect which these cross-

examinations produced. They deserve to be carefully studied

by any one who cares to understand the full effect of this

great instrument for the manifestation not merely of truth,

but of accuracy and fairness.

Of the other witnesses for the prisoner, Mr. Herapath ad-

mitted that he had said that he thought that there was

strychnine in the body, but that Dr. Taylor did notknow how

to find it. He added that he got his impression from news-

paper reports ; but it did not appear that they differed from

the evidence given at the trial. Dr. Letheby said that the

symptoms of Cook were irreconcilable with everything that

he was acquainted with—strychnia poison included. He

ii8 Case ofR.v. Palmer.

admitted, however, that they were not inconsistent with what

he had heard of the symptoms of Mrs. Serjeantson Smyth

who was undoubtedly poisoned by strychnine. Mr. Par-

tridge was called to show that the case might be one of

arachnitis, or inflammation of one of the membranes of the

spinal cord caused by two granules discovered there. In

cross-examination he instantly admitted, with perfect frank-

ness, that he did not think the case was one of arachnitis, as

the symptoms were not the same. Moreover, on being asked

whether the symptoms described by Mr. Jones were consistent

with poisoning by strychnia, he said, " Quite ;" and he con-

cluded by saying that in the whole course of his experience

and knowledge he had never seen such a death proceed from

natural causes. Dr. Eobinson, from Newcastle, was called

to show that tetanic convulsions preceded by epilepsy were

the cause of death. He, however, expregsly admitted in cross-

examination that thesymptoms were consistent with strychnia,

and that some of them were inconsistent with epilepsy. Hesaid that in the absence of any other cause, if he " put aside

the hypothesis of strychnia," he would ascribe it to epilepsy

;

and that he thought the granules in the spinal cord might

have produced epilepsy. The degree of importance attached

to these granules by different witnesses varied. Several of

the witnesses for the Crown considered them unimportant.

The last of the prisoner's witnesses was Dr. Eichardson, who

said the disease might have been angina pectoris. He said,

however, that the symptoms of angina pectoris were so like

those of strychnine that he should have great difficulty in

distinguishing them from each other.

The fact that antimony was found was never seriously dis-

puted, nor could it be denied that its administration would

account for all the symptoms of sickness, &c., which occurred

during the week before Cook's death. No one but the prisoner

could have administered it.

The general result of the whole evidence on both sides

appears to be to prove beyond aU reasonable doubt that the


symptoms of Cook's death were perfectly consistent with

those of poisoning by strychnine, and that there was strong

reason to believe that they were inconsistent with any other

cause. Coupling this with the proof that Palmer bought

strychnia just before each of the two attacks, and that he

robbed Cook of all his property, it is impossible to doubt the

propriety of the verdict.

Palmer's case is remarkable on account of the extraordinary Remarks

minuteness and labour with which it was tried, and on account Paimer's

of the extreme ability with which the trial was conducted on '^'^^^

both sides.

The intricate set of facts which show that Palmer had a

strong motive to commit the crime ; his behaviour before it,

at the time when it was being committed, and after it had

been committed ; the various considerations which showed

that Cook must have died by tetanus produced by strychnine;

that Palmer had the means of administering strychnine to him;

that he did actually administer what in all probability was

strychnine ; that he also administered antimony on many oc-

casions ; and that all the different theories by which Cook's

death otherwise than by strychnine could be accounted for

were open to fatal objections, form a collection of eight or

ten different sets of facts, all connected together immedi-

ately or remotely either as being, or as being shown not to be,

the causes or the effects of Cook's murder, or as forming part

of the actual murder itself.

The scientific evidence is remarkable on various grounds,

but particularly because it supplies a singularly perfect illus-

tration of the identity between the ordinary processes of

scientific research, and the priuciples explained above as

being those on which Judicial Evidence proceeds. Take for

instance the question. Did Cook die of tetanus, either traumatic

or idiopathic ? The symptoms of those diseases are in the

first place ascertained inductively, and their nature was proved

by the testimony of Sir Benjamin Brodie and others. The

course of the sjonptoms being compared with those of Cook,

I20 Case ofR.v. Palmer.

they did not correspond. The inference hy deduction was that

Cook's death was not caused by those diseases. Logically

the matter might be stated thus :

—

All persons who die either of traumatic or of idiopathic

tetanus exhibit a certain course of symptoms.

Cook did not exhibit that course of symptoms, therefore

Cook did not die of traumatic or of idiopathic tetanus.

Every one of the arguments and theories stated in the

case may easily be shown by a little attention to be so many

illustrations of the rules of evidence on the one hand, and of

the rules of induction and deduction on the other.

On the other hand, a flood of irrelevant matter apparently

connected with the trial pressed, so to speak, for admittance,

and if it had been admitted, would have swollen the trial to

unmanageable proportions, and thrown no real light upon the

main question. Palmer was actually indicted for the murder

of his wife, Ann Palmer, and for the murder of his brother,

Walter Palmer. Every sort of story was in circulation as to

what he had done. It was said that twelve or fourteen per-

sons had at different times been buried from his house under

suspicious circumstances. It was said that he had poisoned

Lord George Bentinck, who died very suddenly some years

before. He had certainly forged his mother's acceptance to

bills of exchange, and had carried on a series of gross frauds

on insurance offices. There was the strongest reason to suspect

that the evidence of Jeremiah Smith, referred to in the case

was plotted and artful perjury. If Palmer had been tried in

Erance, every one of these and ianumerable other topics would

have been introduced, and the real matter in dispute would

not have been nearly so fully discussed.

No case sets in a clearer light either the theory or the

practical working of the principles on which the Evidence

Act is based.

One special matter on which Palmer's trial throws great

light is the nature of the evidence of experts. The provisions

relating to this subject are contained in Sections 45 and 46


of the Evidence Act. The only point of much importance in

connection with them is that it should be borne in mind that

their evidence is given on the assumption that certain facts

occurred, but that it does not in common cases show whether or

not the facts on which the expert gives his opinion did really

' occur. For instance, Sir Benjamin Brodie and other witnesses

in Palmer's case said that the symptoms they had heard des-

cribed were the symptoms of poisoning by strychmne, but

whether the maid-servants and others who witnessed and des-

cribed Cook's death were or were not speaking the truth was

not a question for them, but for the jury. Strictly speaking, an

expert ought not to be asked, " Do you think that the deceased

man died of poison?" He ought to be asked to what cause

he would attribute the death of the deceased man, assuming

the symptoms attending his death to have been correctly

described ? or whether any cause except poison would account

for such and such specified symptoms ? This, however, is a

matter of form. The substance of the rules as to experts is

that they are only witnesses, not judges ; that their evidence,

however important, is intended to be used only as materials

upon which others are to form their decision ; and that the

fact which they have to prove is the fact that they entertain

certain opinions on certain grounds, and not the fact that

grounds for their opinions do really exist.

122

iKEBLEVAlirT FACTS.

Having thus described and illustrated the theory of rele-

vancy, it will be desirable to say something of irrelevant facts

which might at first sight be supposed to be relevant.

From the' explanations given in the earlier part of the

chapter it follows that facts are irrelevant unless they can be

shown to stand ia the relation of cause or in the relation of

effect to facts in issue, every step in the connection beiug

either proved or of such a nature that it may be presumed

without proof.

What facts The vast majority of ordinary facts simply coexist with-

^ajit"^"^^^^"*^^^ being in any assignable manner connected together.

For instance, at the moment of the commission of a crime

in a great city numberless other transactions are going

on in the immediate neighbourhood ; but no one would think

of giving evidence of them unless they were in some way

connected with the crime. Facts obviously irrelevant therefore

present little difficulty. The only difficulty arises in dealing

with facts which are apparently relevant but are not really

so. The most important of these are three :

—

Facts ap- 1- Statements as to facts made by persons not called as

Enl Witnesses.

2. Transactions similar to but unconnected with the facts

in issue.

3. Opinions formed by persons as to the facts in issue or

relevant facts.

None of these are relevant within the definition of relevancy

given iu Sections 6—11, both inclusive. It may possibly be

argued that the effect of the second paragraph of Section 11 *

Section 11 is as follows :

—

Facts not otherwise relevant are relevant.

(1) If they are inconsistent with any fact in issue or relevant fact.

Irrelevant Facts. 123

would be to admit proof of such facts as these. It may, for

instance, be said : A (not called as a witness) was heard to

declare that he had seen B commit a crime. This makes it

higlily probable that B did commit that crime. Therefore A's

declaration is a relevant fact under Section 11 (2). This was

not the intention of the section, as is shown by the elaborate

provisions contained in the following part of the Chapter

XJ. (Sections 12—39) as to particular classes of statements,

which are regarded as relevant facts either because the

circumstances under which they are made invest them with

importance, or because no better evidence can be got. The

sort of facts which the section was intended to include are

facts which either exclude or imply more or less distinctly

the existence of the facts sought to be proved. Some degree of

latitude was designedly left in the wording of the section (in

compliance with a suggestion from the Madras Government)

on account of the variety of matters to which it might apply.

The meaning of the section would have been more fully

expressed if words to the following effect had been added to

it :—" No statement shall be regarded as rendering the matter

stated highly probable within the meaning of this section

unless it is declared to be a relevant fact under some other

section of this Act."

The reasons why statements as to facts made by persons Reason for

not called as witnesses are excluded, except in certain specified of hearsay,

cases (see Sections 17—39), are various. In the first place it is

matter of common experience that statements in common

conversation are made so lightly, and are so liable to be mis-

understood or misrepresented, that they cannot be depended

upon for any important purpose unless they are made under

special circumstances.

(2) If by themselves, or in connection -with other facts, they make

the existence or non-existence of any fact in issue or relevant fact

highly probable or improbable.

124 Irrelevant Facts.

Objection. It may be said that this is an objection to the weight of

such statements and not to their relevancy, and there is some

degree of truth in this remark. No doubt, when a man has

to inquire into facts of which he receives in the first instance

very confused accounts, it may and often will be extremely

important for him to trace the most cursory and apparently

futile report. And facts relevant in the highest degree to

facts in issue may often be discovered in this manner. ^policeman or a lawyer engaged in getting up a case, criminal

or civil, would neglect his duty altogether if he shut his ears

to everything which was not relevant within the meaning of

the Evidence Act. A judge or magistrate in India frequently

has to perform duties which in England would be performed

by police officers or attorneys. He has to sift out the truth

for himself as well as he can, and with little assistance of a

professional kind. Section 165 is intended to arm the judge

with the most extensive power possible for the purpose of

getting at the truth. The effect of this section,* is that in

order to get to the bottom of the matter before it the court

wiU. be able to look at and inquire into every fact whatever.

It will not, however, be able to found its judgment upon

the class of statements in question, for the following reasons.

If this were permitted it would present a great temptation

to indolent judges to be satisfied with second-hand reports.

It would open a wide door to fraud. People would

make statements for which they would be in no way re-

sponsible, and the fact that these statements were made

would be proved by witnesses who knew nothing of the

matter stated. Every one would thus be at the mercy of

people who might choose to tell a lie, and whose evidence

could neither be tested nor contradicted.

Effect of

section

IDS.

* Section 165 is aa follows :

" The judge may in order to discover or obtain proper proof of

" relevant facts ask any question lie pleases in any form, at any time,

" of any witness, or of the parties about any fact relevant or irrele-

" vant, and may order the production of any document or thing."

Irrelevant Facts. 125

Suppose that A, B, C, and D give to E, F, and G a minute

detailed account of a crime which they say was committed

by Z. E, F, and G- repeat what they have heard correctly.

A, B, C, and D disappear or are not forthcoming. It is

evident that Z would be altogether unable to defend himself

in this case, and that the court would be unable to test the

statements of A, B, C, and D. The only way to avoid this

is to exclude such evidence altogether, and so to put upon both

judges and magistrates as strong, a pressure as possible to get

to the bottom of the matter before them.

It would waste an incalculable amount of time. To try to

trace unauthorized and irresponsible gossip, and to discover

the grains of truth which may lurk in it is like trying to

trace a fish in the water.

The exclusion of evidence as to transactions similar to, but Uncon-

not specifically connected with the facts in issue, rests upon"j.^'J'g,

the ground that if it were not enforced every trial, whether ''c'ions.

civil or criminal, might run into an inquiry into the whole

life and character of the parties concerned. Litigants have

frequently many matters in difference besides the precise

point legally at issue between them, and it often requires a

good deal of vigour to prevent them from turning courts of

justice into theatres in which all their affairs may be discussed.

A very slight acquaintance with French procedure is enough

to show the evils of not keeping people close to the point in

judicial proceedings.

As to evidence of opinion, it is excluded because its admis- Exclusion

sion would in nearly all cases be mere waste of time. dence of

The concluding part of the. chapter on the relevancy of facts°p™'°"-

enumerates the exceptions which are to be made to the general tions to

rules as to irrelevancy. The rules as to admissions, statements ^relevancy

made by persons who cannot be called as witnesses, and state-

ments made under circumstances which in themselves afford

a guarantee for their truth, are an exception to the exclu-

sion of statements as proof of the matter stated.

Judgments in courts of justice on other occasions form an

126 Admission of Statements.

Admis-sions.

Confes-

sions.

State-

ments bywitnesses

who can-

not becalled.

State-

mentsunderspecial

circum-

stances.

exception to the exclusion of evidence of transactions not

specifically connected with facts in issue, and the provisions

as to the admission of evidence of opinions in certain cases

are contained in Sections 45—55. I will notice very shortly

the principle on which these provisions proceed.

1. The general rule with regard to admissions, which are

defined to mean aU that the parties or their representatives in

certain degrees say about the matter in dispute, or facts rele-

vant thereto, is that they may be proved as against those

who made them, but not in their favour. The reason of the

rule is obvious. If A says, '' B owes me money," the mere fact

that he says so does not even tend to prove the debt. If the

statenient has any value at all, it must be derived from some

fact which lies beyond it ; for instance, A's recollection of his

having lent B the money. To that fact, of course, A can

testify, but his subsequent assertions add nothing to what he

has to say. If, on the other hand, A had said, " B does not

owe me anything," this is a fact of which B might make

use, and which might be decisive of the case.

Admissions in reference to crimes are usually called con-

fessions. I may observe upon the provisions relating to them

that Sections 25, 26, and 27 were transferred to the Evidence

verbatim from the Code of Criminal Procedure, Act xxv. of

1861. They differ widely from the law of England, and were

inserted in the Act of 1861 in order to prevent the practice of

torture by the police for the purpose of extracting confessions

from persons in their custody.

Statements made by persons who are dead or otherwise

incapacitated from being called as witnesses are admitted in

the cases mentioned in Sections 32 and 33. The reason is

that in the cases in question no better evidence is to be had.

In certain cases statements are made under circumstances

which in themselves are a strong reason for believing them to

be true, and in these cases there is generally little use in

calling the person by whom the statement was made. The

sections whi(>h relate to them are 34—38.

yudgments. Opinions, Character. 127

It may be well to point out here the manner in whiph the

Evidence Act affects the proof of evidence given by a

witness in a court of justice. The relevancy of the fact that

such evidence was given, depends partly on the general

principles of relevancy. For instance, if a witness were accused

of giving false testimony, the fact that he gave the testimony

alleged to be false would be a fact in issue. But the Act also

provides for cases in which the fact that evidence was given

on a different occasion is to be admissible, either to prove the

matter stated (Section 33), or in order to contradict (Sections

155, 3) or in order to corroborate (Section 157) the witness.

By reference to these Sections it must be ascertained whether

the fact that the evidence was given is relevant. If it is

relevant, Section 35 enacts that an entry of it in a record

made by any public servant in the discharge of his duty shall

be relevant as a mode of proving it. The Codes of Civil and

Criminal Procedure direct all judicial officers to make

records of the evidence given before them; and-Section 80 of

the Evidence Act provides that a document purporting to be

a record of evidence shall be presumed to be genuine, that

statements made as to the circumstances under which it was

taken shall be presumed to be true, and the evidence to

have been duly taken. The result of these sections taken to-

gether is that when proof of evidence given on previous occa-

sions is admissible, it may be proved by the production of the

record or a certified copy (see Section 76).

The sections as to judgments (40, 41) designedly omit to judgments

deal with the question of the effect of judgments in preventing"g^'J^'^'

further proceedings in regard of the same matter. The law

upon this subject is to be found in Section 2 of the Code of

Civil Procedure, and in Section of 460 the Code of Criminal

Procedure. The cases which the Evidence Act provides for

are cases in which the judgment of a court is in the nature of

a law, and creates the right which it affirms to exist.

The opinions of any persons, other than the judge by whom Opinions,

the fact is to be decided, as to the existence of facts in issue or

128 Characters.

Character

when mi-

portant.

relevant facts are, as a rule, irrelevant to the decision of the

cases to which they relate, for the most obvious reasons. To

show that such and such a person thought that a crime had

been committed or a contract made would either be to show

nothing at all, or it would invest the person whose opinion

was proved with the character of a judge. In some few cases,

the reasons for which are self-evident, it is otherwise. They

are specified in Sections 45—51.

The sections as to character require little remark. Evidence

of character is, generally speaking, only a makeweight,

though there are two classes of cases in which it is highly

important :—

(1) Where conduct is equivocal, or even presumablycriminal

In this case evidence of character may explain conduct and

rebut the presumptions which it might raise in the absence of

such evidence. A man is found in possession of stolen goods.

He says he found them and took charge of them to give them

to the owner. If he is a man of very high character this

may be believed.

(2) When a charge rests on the direct testimony of a single

witness, and on the bare denial of it by the person charged.

A man is accused of an indecent assault by a woman with

whom he was accidentally left alone. He denies it. Here a

high character for morality on the part of the accused person

would be of great importance.

129.

CHAPTEE IV.

GENERAL OBSERVATIONS ON THE INDIAN EVIDENCE ACT.

M the preceding pages I have stated and illustrated the theory Chap. v.

of iudicial evidence on which the Evidence Act is based. I ^°'t*^'"'' ence to

have but little to add to that explanation. The Act. speaks English

for itself. No labour was spared to make its provisions

complete and distinct. As the first section repeals all

unwritten rules of evidence, and as the Act itself supplies a

distinct body of law upon the subject, its object would be de-

feated by elaborate references to English cases. In so far as it is

obscure or incomplete, the judges and the Legislature are its

proper critics. If it is turned iato an abridgment of the law

which it was meant to replace, it will be injurious instead of

being useful to those for whom it was intended.

I shall accordingly content myself with a verj' short descrip-

tion of the contents of the remainder of the Act, referring for

a full explanation of the matter to the Act itself

The general scheme of Part II., which relates to Proof and Scheme of

Part II.

consists of four chapters, containing forty-five sections, may be

expressed iu the following propositions :

—

1. Certain facts are so notorious in themselves, or are stated Judicial

notice.

in so authentic a manner in well-known and accessible publi-

cations, that they require no proof. The court, if it does not

know them, can inform itseK upon them without formally

taking evidence. These facts are said to be judicially noticed.

2. All facts except the contents of documents may be proved 9'"'^' ^^''"

•> ' dence.

by oral evidence, which must in aU cases be direct. That is,

it must consist of a declaration by the witness that he per-

ceived by his own senses the fact to which he testifies.

K

I30 Documentary Evidence.

Chap. IV,

Docu-ments.

Writings

when ex-

clusive

evidence.

3. The contents of documents must be proved either by

the production of the document, which is called primary

evidence, or by copies or oral accounts of the contents, which

are called secondary evidence. Primary evidence is required

as a rule, but this is subject to seven important exceptiojls in

which secondary evidence may be given. The most important

of these are (1) cases in which the document is in the posses-

sion of the adverse party, in which case the adverse party

must in general (though there are several exceptions) have

notice to produce the document before secondary evidence of

it can be given.

And (2) cases in which certified copies of public documents

are admissible in place of the documents themselves.

4. Many classes of documents which are defined in the act,

are presumed to be what they purport to be, but this pre-

sumption is liable to be rebutted. Two sets of presumptions

will sometimes apply to the same document. For instance

what purports to be a certified copy of a record of evidence is

produced. It must by Section 76 be presumed to be an

accurate copy of the record of evidence. By Section 80 the

facts stated in the record itself as to the circumstances under

which it was taken, e.g., that it was read OA'er to the witness

in a language which he understood, must be presumed to be

true.

5. When a contract, grant, or other disposition of property

is reduced to writing, the writing itself (or secondary evidence

of its contents) is not only the best but is the only admissible

evidence of the matter which it contains. It cannot be varied

by oral evidence, except in certain specified cases.

It is necessary in applying these general doctrines (the

expediency of which is obvious) to practice to go into con-

siderable detail, and to introduce provisos, exceptions, and

qualifications which appear more intricate and difficult than

they really are. If, however, the propositions just stated are

once distinctly understood and borne in mind, the details will

be easily mastered when the occasion for applying them

Presufnptions. 131

arises. The provisions in the Act are all made in Order to meet Chap. iv.

real difficulties which arose iu practice in England, and which

must of necessity arise over and over again, and give occasion

to litigation unless they were specifically provided for before'

hand.

One single principle runs through all the propositions Principle

relating to documentary evidence. It is that the very object sfons^n'"

for which writing is used is to perpetuate the memory of what "^ocumen-

is written down, and so to furnish permanent proof of it. In dence.

order that full effect may be given to this, two things are

necessary, namely, that the document itself should whenever

it is possible be put before the judge for his inspection, and

that if it purports to be a final settlement of a previous nego-

tiation, as in the case of a written contract, it shall be treated

as final, and shall not be varied by word of mouth. If the

first of these rules were not observed the benefit of writing

would be lost. There is no use in writing a thing down

unless the writing is read If the second rule were not

observed people would never know when a question was

settled, as they would be able to play fast and loose with their

M'ritings.

By bearing these leading principles in miud the details and

exceptions wiU become simple. Their practical importance is

indeed as nothing in comparison to the importance of the rules

which they qualify.

The third part of the Act, which contains three chapters

(Chapters VII., VIII., and IX.) and sixty-seven sections,

relates to the production and effect of evidence.

Chapter VII., which relates to the burden of proof, deals Presump-

with a subject which requires a little explanation. This is''°°^'

the subject of presumptions. Like most other words intro-

duced into the law of evidence, it has various meanings, and

it has besides a history to which ItshaH refer very shortly.

In times when the true theory of proof' was very imper-

fectly understood, inasmuch as physical science, by the progress

of which that theoiy was gradually discovered, was in its

infancy, numerous attempts were made to construct theories

132 Presumptions.

Chap. IV. as to the weight of evidence which should supply the wantof

one founded on observation. In some cases this was effected

by requiring the testimony of a certain number of witnesses

in particular cases; such a fact must be proved by two'

witnesses, such another by four, and so on. In other cases

particular items of evidence were regarded as full proof, half

full proof, proof less than half fuU, and proof more than half

full.

The doctrine of presumptions was closely -connected with

this theory. Presumptions were inferences which the judges

were directed to draw from certain states of facts in certain

cases, and these presumptions were allowed a certain amount

of weight in the scale of proof ; such a presumption and such

evidence amounted to full proof, such another to half

full, and so on. The very irregular manner in which the

English law of evidence grew up has had, amongst other effects,

that of making it an uncertain and difficult question howfar the theory of presumptions, and the other theories of which

they formed a part, affect English law, but substantially

the result is somewhat as follows :

—

Presumptions are of four kinds according to English law.

1. Conclusive presumptions. These are rare, but whenthey occur they provide that certain" modes of proof shall not

be liable to contradiction.

2. Presumptions which affect the ordinary rule as to the

burden of proof that he who afi&rms must prove. He whoaffirms that a man is dead must usually prove it, but if he

shows, that the man has not been heard of for seven years, he

shifts the burden of proof on his adversary.

3. There are certain presumptions which, though Liable to

be rebutted, are regarded by English law as being something

more than mere maxims, though it is by no means easy to

say how much more. Ail instance of such a presumption

is to be found in the rule that recent possession of stolen

goods unexplained raises a presumption that the possessor is

either the thief or a receiver.

Prestiinptions. 133

4. Bare presumptions of fact, -whieli are nothing but Chap.iv.

arguments to which the Court attaches whatever value it

pleases.

Chapter VII. of the Evidence Act deals with this subject

as follows :—First it lays down the general principles which

regulate the burden of proof (sections ].01—lOG). It then

enumerates the cases in which the burden of proof is

determined in particular cases, not by the relation of

the parties to the cause, but by presumptions (sections

107—111). It notices two cases of conclusive presump-

tions, the presumption of legitimacy from birth during

marriage (section 112), and the presumption of a valid

cession of territory from the publication of a notifica-

tion to that effect in the Gazette, of India, (section 113). This

is one of several conclusive statutory presumptions which

will be found in different parts of the statutes and Acts.

Finally, it declares, in section 114, that the court may in all

cases whatever draw from the facts before it whatever

inferences it thinks just. The terms of this section are such

as to reduce to their proper position of mere maxims which

are to be applied to facts by the courts in their discretion, a

large number of presumptions to which English law gives, to

a greater or less extent, an artificial value. Nine of the most

important of them are given by way of illustration.

AU notice of certain general legal principles which are,

sometimes called presumptions, but which in reality belong

rather to the substantive law than to the law of evidence, was

designedly omitted, not because the truth of those principles

was denied, but because it was not considered that the

Evidence Act was the proper place for them. The most

important of these is the presumption, as it is sometimes

called, that every one knows the law. The principle is far

more correctly stated in the maxim, that ignorance of the

law does not excuse a breach of it, which is one of the

fundamental principles of criminal law.

The subject of estoppels (Chapter VIII,.) differs from that

134 Estoppels.

Chap. IV. of presumptions in the circumstance that an estoppel is a per-

sonal disqualification laid upon a person peculiarly circum-

stanced from proving peculiar facts. A presumption is a

rule that particular inferences shall be drawn from particular

facts whoever proves them. Much of the English learning

connected with estoppels is extremely intricate and technical,

but this arises principally from two causes, the peculiarities

of English special pleading, and the fact that the effect of

prior judgments is usually treated by the English text writers

as a branch of the law of evidence, and not as a branch of the

law of Civil Procedure.

The remainder of the Act consists of a reduction to express

propositions of rules as to the examination of witnesses,

which are well established and understood. They caU for

no commentary or introduction, as they sufficiently explain

their own meaning, and do not materially vary the existing

law and practice.

THE

INDIAN EVIDENCE ACT.

THE INDIAN EVIDENCE ACT, 1872.

CONTENTS.

Preamble.

Paet I.

EELEVANCY OF FACTS.

Chaptek 1.

—

Pjrbliminaky.

Section.

1. Short title.

Extent.

Commencement of Act.

2. Eepeal of enactments.

3. Interpretation Clause.

4. " May presume."

" Shall presume."

" Conclusive proof."

Chapter II.—Of the Eelevancy of Facts.

5. Evidence may he given of facts in issue and relevant

facts.

6. Eelevancy of facts forming part of same transaction.

7. Facts which are occasion, cause, or effect of facts in issue.

8. Motive preparation and previous or subsequent conduct.

9. Facts necessary to explain or introduce relevant facts.

10. Things said or done by conspirator in reference to

common design.

11. When facts not otherwise relevant become relevant.

12. In suit for damages, facts tending to enable Court to

determine amount are relevant.

13. Facts relevant when right or custom is in question.

14. Facts showing existence of state of mind, or of body or

bodily feeling.

138 The Indian Evidence Act, 1872.

Section.

15. Facts bearing on question whether act was accidental or

intentional.

16. Existence of course of business, when relevant.

Admissions.

17. Admission defined.

18. Admission

—

by party to proceeding or his agent

;

by suitor in representative character;

by party interested in subject-matter

;

by person from whom interest derived.

19. Admissions by persons whose position must be proved

as against party to suit.

20. Admissions by persons expressly referred to by party to

suit.

21. Proof of admissions against persons making them, and

by or on their behalf.

22. When oral admissions as to contents of documents are

relevant.

23. Admissions in civil cases, when relevant.

24. Confession caused by inducement, threat, or promise,

when irrelevant in criminal proceeding.

25. Confession to police of&cer not to be proved.

26. Confession by accused while in custody of police not to

be proved against him.

27. How much ofinformation received from accused may be

proved.

28. Confession made after removal of impression caused by

inducement, threat, or promise relevant.

29. Confession otherwise relevant not to become irrelevant

because of promise of secrecy, &c.

30. Consideration ofproved confession affecting person mak-

ing it and others jointly under trial for some offence.

31. Admission not conclusive proof, but may estop.

The Indian Evidence Act, 1872.. 139

Statements by Persons who cannot be called as Witnesses.

Section.

32. Cases in which statement of relevant fact by person who

is dead or cannot be found, &c., is relevant.

When it relates to cause of death

;

or is made in course of business

or against interest of maker

;

or gives opinion as to public right or custom, or

matters of general interest

;

or relates to existence of relationship

;

or is made in will or deed relating to family affairs

;

or in document relating to transaction mentioned

in section 13, clause (a);

or is made by several persons, and expresses feel-

ings relevant to matter in question.

33. Eelevancy of certain evidence for proving, in subse-

quent proceeding, the truth of facts therein stated.

Statements made undee Special Circumstances.

34. Entries in books of account when relevant.

35. Eelevancy of entry in public record, made in perform-

ance of duty.

36. Eelevancy of statements in maps, charts, and plans.

37. Eelevancy of statement as to facts of public nature, con-

tained in certain Acts or notifications.

38. Eelevancy of statements as to any law contained in

law-books.

How much of a Statement is to be proved.

39. What evidence to be given when statement forms part

of a conversation, document, book, or series of letters

or papers.


Judgments of Coukt of Justice, when Eelevant.

Section.

40. Previous judgments relevant to bar a second suit or

trial.

41. Eelevancy of certain judgments in probate, &c., juris-

diction.

42. Eelevancy and effect of judgments, orders, or decrees

other than those mentioned in Section 41.

43. Judgments, &c., other than those mentioned in Sections

40—42, when relevant.

44. Fraud or collusion in obtaining judgment, or incompe-

tency of Court, may be proved.

Opinions of Third Peksons, when relevant.

45. Opinions of experts.

46. Facts bearing upon opinions of experts.

47. Opinion as to handwriting, when relevant.

48. Opinion as to existence of right or custom, when

relevant.

49. Opinion as to usages, tenets, &c., when relevant.

50. Opinion on relationship, when relevant.

51. Grounds of opinion, when relevant.

Chaeactek when Eelevant.

52. In civil cases, character to prove conduct imputed

irrelevant.

53. In criminal cases, previous good character relevant.

54. In criminal proceeding previous conviction relevant,but

not previous bad character, except in reply.

55. Character as affecting damages.

The Indian Evidence Act, 1872. 141

Paet II.

OiT PEOOF.

Chapter III.

—

Facts which need not be peoved.

Section.

56. Facts judicially noticeable need not be proved.

57. Facts of whicb Court must take judicial notice.

58. Facts admitted need not be proved.

Chapter IV.—Of Oral Evidence.

59. Proof of facts by oral evidence.

GO. Oral evidence must be direct.

Chapter V.

—

Of Documentary Evidence.

61. Proof of contents of documents.

62. Primary evidence.

63. Secondary evidence.

64. Proof of documents by primary evidence.

65. Cases in which secondary evidence relating to docu-

ments may be given.

66. Eules as to notice to produce.

67. Proof of signature and handwriting of person alleged

to have signed or written document produced.

68. Proof of execution of document required by law to be

attested.

69. Proof where no attesting witness found.

70. Admission of execution by party to attested document.

71. Proof when attesting -witness denies the execution.

72. Proof of document not required by law to be attested.

73. Comparison of signature, writing, or seal, with others

admitted or proved.

Public Documents.

74. Public documents:

75. Private documents.

[42 The Indian Evidence Act, 1872.

Section.

76. Certified copies of public documents.

77. Proof of documents by production of certified copies.

78. Proof of other official documents.

Presumptions as to Documents.

79. Presumption as to genuineness of certified copies.

80. Presumption as to documents produced as record of

evidence.

81. Presumption as to gazettes, newspapers, private Acts

of Parliament, and other documents.

82. Presumption as to document admissible in England

without proof of seal or signature.

83. Presumption as to maps or plans made by authority

of Government.

84. Presumption as to collections of laws and reports of

decisions.

85. Presumption as to powers of attorney.

86. Presumption as to certified copies of foreign judicial

records.

87. Presumption as to books, maps, and charts.

88. Presumption as to telegraphic messages.

89. Presumption as to due execution, &c., of documents

not produced.

90. Presumption as to documents thirty years old.

Chapter VI.

—

Of the Exclusion of Oeal by Documentary

Evidence.

91. Evidence of terms of contracts, grants, and other dis-

positions of property reduced to form of document.

92. Exclusion of evidence of oral agreement.

93. Exclusion of evidence to explain or amend ambiguous,

document.

94. Exclusion of evidence against application of document

to existing facts.

The Indian Evidence Aci, 18^2

.

143

Section.

95. Evidence as to document unmeaning in reference to

existing facts.

96. Evidence as to application of language vrhicli can

apply to one only of several persons.

97. Evidence as to application of language to one of two

sets of facts, to neither of which the whole correctly

applies.

98. Evidence as to meaning of illegible characters, &c.

99. Who may give SAadence of agreement varying terms of

document.

100. Saving of provisions of Indian Succession Act relating

to wills.

Part III.

PEODUCTION AND EFFECT OF EVIDENCE.

Chapter VII.

—

Of the Btjkden of Proof.

101. Burden of proof

102. On whom burden of proof lies.

103. Burden of proof as to particular fact.

104. Burden of proving fact to be proved to make evidence

admissible.

105. Burden of proving that case of accused comes within

exceptions.

106. Burden of proving fact especially within knowledge.

107. Burden of proving death of person known to have been

aUve within thirty years.

108. Burden of proving that person is alive who has not been

heard of for seven years.

109. Burden of proof as to relationship iu cases of partners,

landlord and tenant, principal and agent.

110. Burden of proof as to ownership.

111. Proof of good faith in transactions where one party is in

relation of active confidence.


Section.

112. Birth during marriage, conclusive proof of legitimacy.

113. Proof of cession of territory.

114. Court may presume existence of certain facts.

Chapter VIII.

—

Estoppel.

115. Estopppel.

116. Estoppel of tenant

;

and of licensee of person in possession.

117. Estoppel of accepter of bill of exchange, bailee or

licensee.

Chapter IX.

—

Of Witnesses.

118. "Who may testify.

119. Dumb witnesses.

120. Parties to civil suit, and their wives or husbands.

Husband or wife of person under criminal trial.

121. Judges and Magistrates.

122. Communications during marriage.

123. Evidence as to affairs of State.

124. Of&cial communications.

125. Information as to commission of offences.

126. Professional communications.

127. Section 126 to apply to interpreters, &c.

128. Privilege not waived by volunteering evidence.

129. Confidential communications with legal advisers.

130. Production of title-deeds of witness not a party.

131. Production of documents which another person, having

possession, could refuse to produce.

132. Witness not excused from answering on ground that

answer will criminate.

Proviso.

133. Accomplice.

134. Niimber of witnesses.


Chaptee X.

—

Of the Examination of Witnesses.

Section.

135. Order of production and examination of witnesses.

136. Judge to decide as to admissibility of evidence.

137. Examination in chief.

Cross-examination.

Ee-examination.

138. Order of examinations. Direction of re-examination.

139. Cross-examination of person called to produce a docu-

ment.

140. Witnesses to character.

141. Leading questions.

142. When they must not be asked.

143. When they may be asked.

144. Evidence as to matters in writing.

145. Cross-examination as to previous statements in writing.

146. Questions lawful in cross-examination.

147. When witness to be compelled to answer.

148. Court to decide when question shall be asked and when

witness compelled to answer.

149. Questions not to be asked without reasonable grounds.

150. Procedure of Court in case of question being asked

without reasonable grounds.

151. Indecent and scandalous questions.

152. Questions intended to insult or annoy.

153. Exclusion of evidence to contradict answers to ques-

tions testing veracity.

154. Question by party to his own witness.

155. Impeaching credit of witness.

156. Questions tending to corroborate evidence of relevant

fact, admissible.

157. Former statements of witness may be proved to corro-

borate later testimony as to same fact.

158. What matters may be proved in connection with proved

statement relevant under section 32 or 33.


Section.

159. Eefreshing memory.

When witness may use copy of document to refresh

memory.

160. Testimony to facts stated in document mentioned in

section 159.

161. Eight of adverse party as to writing used to refresh

memory.

162. Production of documents.

Translation of documents.

163. Giving, as evidence, of document called for and pro-

duced on notice.

164. Using, as evidence, of document production of which

was refused on notice.

165. Judge's power to put questions or order production.

166. Power of jury or assessors to put questions.

Chaptee XI.—Or Improper Admission and Eejection of

Evidence.

167. No new trial for improper admission or rejection of

evidence.

Schedule.—Enactments repealed.

ACT No. I. OF 1873.

Passed by the Governoe Geneeal of India in Council.

{Received the assent of the Governor General on the 15th

March, 1872).

The Indian Evidence Act, 1872.

WHEEEAS it is expedient to consolidate, define, and amend Preamble.

the Law of Evidence ; It is hereby enacted as follows :

—

Part I.

EELEVANCY OP PACTS.

Chapter I.

—

Preliminary.

1. This Act may be called "The Indian Evidence Act, Short title.

1872:"

It extends to the whole of British India, and applies to allExtent,

judicial proceedings in or before any Court, including Courts

Martial, but not to affidavits presented to any Court or

Officer, nor to proceedings before an arbitrator

;

and it shall come into force on the first day of September, Com-' ^ mencement'

1872

:

of Act.

2. On and from that day the following laws shall be Repeal of•' ° enact-

repealed :

—

ments.

(1.) AH rules of evidence not contained in any Statute,

Act or Eegulation in force in any part of British India :

(2.) All such rules, laws and regulations as have acquired

the force of law under the twenty-fifth section of ' The Indian

Councils' Act, 1861,' in ao far as they relate to any matter

herein provided for ; and

148 The Indian Evidence Act, 1872,

Inteq)re-

tation-

clause.

"Court."

"Fact/

" Rele-

vant."

"Facts in

issue."

(3.) The enactments mentioned in the schedule hereto, to

the extent specified in the third column of the said schedule.

But nothing herein contained shall he deemed to affect

any provision of any Statute, Act or Eegulation in force in

any part of British India and not herehy expressly repealed.

3. In this Act the following words and expressions are

used in the following senses, unless a contrary intention

appears from the context :

—

" Court " includes aU Judges and Magistrates and all per-

sons, except arhitrators, legally authorized to take evidence.

" ¥act " means and includes

—

(1) any thing, state of things, or relation of things, capable

of being perceived by the senses

;

(2) any mental condition of which any person is conscious.

TJluiiraixons.

(a) That there are certain objects arranged in a certain order in a

certain place, is a fact.

(J.) That a man heard or saw something is a fact.

(c.) That a man said certain words is a fact.

((Z.) That a man holds a certain opinion, has a certain intention

acts in good faith, or fraudulently, or uses a particular word in a par-

ticular sense, or is or was at a specified time conscious of a particular

sensation, is a fact.

(e.) That a man has a certain reputation is a fact.

One fact is said to be relevant to another when the one is

connected with the other in any of the ways refeyred to in the

provisions of this Act relating to the relevancy of facts.

The expression " Facts in issue " means and includes

—

any fact from which, either by itself or in connection with

other facts, the existence, non-existence, nature, or extent of

any right, liability, or disability, asserted or denied in any

suit or proceeding, necessarily follows.

Explanation.—Whenever, under the provisions of the law

for the time being in force relating to Civil Procedure, any

Court records an issue of fact, the fact to be asserted or

denied in answer to such issue, is a fact in issue.

The Indian Evidence Act, 1872, 149

TXliistratwns.

A is accused of the murder of B.

At his trial the following facts may be in issue :

—

^That A caused B's death.

>That A intended to cause B's death. y ^ .;} , /

That A had received grave and sudden provocation from B. •^ i^.'1^'-J!Im.i

> That A, at the time of doing the act which caused B's ^death, was,

by reason of unsoundness of mind, incapable of knowing its

nature.

"Document" means any matter expressed or described "Docu-

upon any substance by means of letters, figures, or marks, or

by more than one of those means, intended to be used, or

whicli may be used, for the purpose of recording that matter.

Illustrations.

A writing is a document.

Words printed, lithographed or photographed are documents.

A map or plan is a document.

An inscription on a metal plate or stone is a document,

A caricature is a document.

" Evidence " means and includes

—

(1) all statements which the Court permits or requires to'' ^^''j

be made before it by witnesses, in relation to matters of fact

under inquiry

;

such statements are called oral evidence :

(2) all documents produced for the inspection of the

Court

;

all such documents are called documentary evidence.

A fact is said to be proved when, after considering the '^Proved.'-

matters before it, the Court either believes it to exist, or

considers its existence so probable that a prudent man ought,

under the circumstances of the particular case, to act upon

the supposition that it exists.

A fact is said to be disproved when, after considering the " Dis-

matters before it, the Court either believes that it does not P™^^'''

exist, or considers its non-existence so probable that a pru-

dent man ought, under the circumstances of the particular

case, to act upon the supposition that it does not exist.

r^ fj. j-t' '^ir-'

I5P The Indian Evidence Act, 1872.

"Notproved."

"May pre-

sume."

"Shallpresume.'

" Conclu-

sive

proof."

Evidencemay begiven of

facts in

issue andrelevant

facts.

A fact is said not to be proved when it is neither proved

nor disproved.

4. Whenever it is provided by this Act that the Court

raay presume a fact, it may either regard such fact as proved,

unless and until it is disproved, or may call for proof of it

:

Whenever it is directed by this Act that the Court shall

presume a fact, it shall regard such fact as proved, unless and

until it is disproved :

When one fact is declared by this Act to be conclusive

proof of another, the Court shall, on proof of the one fact,

regard the other as proved, and shall not allow evidence to

be given for the purpose of disproving it.

Relevancyof facts

forming

Chapter II.

—

Of the Eelevancy of Facts.

5. Evidence may be given in any suit or proceeding of the

existence or non-existence of every fact in issue and of such

other facts as are hereinafter declared to be relevant, and of

no others.

ExplauMtion.—This section shall not enable any person to

give evidence of a fact which he is disentitled to prove by

any provision of the law for the time being in force relating

to Civil Procedure.

lOMsbfaiion.

(o.) A is tried for the mvirder of B by beating tim with a club

with the intention of causing his death.

At A's trial the following facts are in issue

—

A's beating B with the club.

A's causing B's death by such a beating.

A's intention to cause B's death.

(6.) A suitor does not bring with him, and have in readiness for

production at the first hearing of the case, a bond on which he

relies. This section does not enable him to produce the bond or

prove its contents at a subsequent stage of the proceedings, otherwise

than in accordance with the conditions prescribed by the Code of

Civil Procedure.

6. Facts which, though not in issue, are so connected with

a fact in issue as to form part of the same transaction, are


relevant, whether they occurred at the same time and place part of

or at different times and places. sa^ron!^"'

mustrations.

(a.) A is accused of the murder of B by beating him. Whatever

was said or done by A or B or the by-standers at the beating, or so

shortly before or after it as to form part of the transaction, is a

relevant fact.

(6.) A is accused of waging war against the Queen by taking part in

armed insurrection in which property is destroyed, troops are

attacked, and gaols are broken open. The occurrence of these facts

is relevant, as forming part of the general transaction, though A maynot have been present at all of them.

(c.) A sues B for a Hbel contained in a letter forming part of a

correspondence. Letters between the parties relating to the subject

out of which the libel arose, and forming part of the correspondence

it which it is contained, are relevant facts, though they do not con-

tain the libel itself.

((Z.) The question is, whether certain goods ordered from B were

delivered to A. The goods were delivered to several intermediate

persons successively. Each dehvery is a relevant fact.

7. Facts which are the occasion, cause, or effect, immediate Facts

or otherwise, of relevant facts, or facts in issue, or which occasion,

constitute the state of things under which they happened, oreffect oT

which afforded an opportunity for their occurrence or trans- f^*^''^^'°-

action, are relevant.

IHustrations.

issue.

(a.) The question is, whetherA robbed B.

The facts that, shortly before the robbery, B went to a fair with

money in his possession, and that he showed it, or mentioned the

fact that he had it, to third persons, are relevant.

(6.) The question is, whether A murdered B.

Marks on the ground, produced by a struggle at or near the place

where the murder was committed, are relevant facts.

(c.) The question is, whether A poisoned B.

The state of B's health before the symptoms ascribed to poison,

and habits of B, known to A, which afforded an opportunity for the

administration of poison, are relevant facts.


Motive, 8. Any' fact is relevant which shows or constitutes a

tion and motive or preparation for any fact in issue or relevant fact,

subsequent ^^^ conduct of any party, or of any agent to any party, to

conduct. any suit or proceeding, in reference to such suit or pro-

ceeding, or in reference to any fact in issue therein or

relevant thereto, and the conduct of any person an ofifence

against whom is the subject of any proceeding, is relevant, if

such conduct influences or is influenced by any fact in issue

or relevant fact, and whether it was previous or subsequent

thereto.

EocplaTiation 1.—The word "conduct" in this section does

not include statements, unless those statements accompany

and explain acts other than statements ; but this explanation

is not to affect the relevancy of statements under any other

section of this Act.

Explanation 2.—^When the conduct of any person is

relevant, any statement made to him or in his presence and

hearing, which affects such conduct, is relevant.

Uhbitrations.

(a.) A is tried for the murder of B.

The facts that A murdered 0, that B knew that A had murdered

C, and that B had tried to extort money from A by threatening to

make his knowledge public, are relevant.

(6.) A sues B upon a bond for the payment of money. B denies

the making of the bond.

The fact that, at the time when the bond was alleged to be made,

B required money for a particular purpose, is relevant.

(c.) A is tried for the murder of B by poison.

The fact that, before the death of B, A procured poison similar to

that which was administered to B, is relevant.

{d.) The question is, whether a certain document is the will of A.

The facts that, not long before the date of the alleged will,A made

inquiry into matters to which the provisions of the alleged will

relate ; that he consulted vakils ia reference to making the will, and

that he caused drafts of other wills to be prepared, of which he did

not approve, are relevant.

(e.) A is accused of a crime.

The facts that, either before, or at the time of, or after the alleged


crime, A provided evidence whicli would tend to give to the facts of

the case an appearance favourable to himself, or that he destroyed or

concealed evidence, or prevented the presence or procured the

absence of persons who might have been witnesses, or suborned

persons to give false evidence respecting it, are relevant.

(/.) The question is, whether A robbed B.

The facts that, after B was robbed, C said in A's presence, ' the

police are coming to look for the man who robbed B,' and that

immediately afterwards A ran away, are relevant.

(g.) The question is, whether A owes B 10,000 rupees.

The facts that A asked C to lend him money, and that D said

to C in A's presence and hearing, ' I advise you not to trust A, for

he owes B 10,000 rupees, and that A went away without making

any answer, are relevant facts.

(?!..) The question is, whether A committed a crime.

The fact that A absconded after receiving a letter warning him

that inquiry was being made for the criminal, and the contents of

the letter, are relevant.

(i.) A is accused of a crime.

The facts that, after the commission of the alleged crime, he ab-

sconded, or was in possession of property or the proceeds of property

acquired by the crime, or attempted to conceal things which were or

might have have been used in committing it, are relevant.

y.) The question is, whether A was ravished.

The facts that, shortly after the alleged rape, she made a complaint

relating to the crime, the circumstances under which, and the terms

in which the complaint was made, are relevant.

The fact that, without making a complaint, she said that she had

been ravished is not relevant as conduct under this section, though

it may be relevant

as a dying declaration under section thirty-two, clause (one), or

as corroborative evidence under section one hundred and fifty-

seven.

(it.) The question is, whether A was robbed.

The fact that, soon after the alleged robbery, he made a complaint

relating to the offence, the circumstances under which, and the terms

in which, the complaint was made, are relevant.

The fact that he said he had been robbed, without making any

complaint, is not relevant as conduct under this section, though it

may be relevant

as a dying declaration under section thirty-two, clause (one), or

M


as corroborative evidence under secbion one hundred and fifty-

seven.

Facts ne- 9. Tacts necessarv to explain or introduce a fact in issuecessary to o s-

explain or Or relevant fact, or which support or rebut an inference sug-

relevaut gcsted by a fact in issue, or relevant fact, or which establish

facts.jjjg i(Je]i(;ity of any thing or person whose identity is relevant,

or fix the time or place at which any fact in issue or relevant

fact happened, or which show the relation of parties by

whom any such fact was transacted, are relevant in so far as

they are necessary for that purpose.

Ilhisin'aVions.

(a.) The question is, whether a given document is the will of A.

The state of A's property and of his family at the date of the

alleged will may be relevant facts.

(J.) A sues B for a libel imputing disgraceful conduct to A ; Bafl&rms that the matter alleged to be libellous is true.

The position and relations of the parties at the time when the libel

was published may be relevant facts as introductory to the facts in

issue.

The particulars of a dispute between A and B about a matter un-

connected with the alleged libel are irrelevant, though the fact that

there was a dispute may be relevant if it affected the relations

between A and B.

(c.) A is accused of a crime.

The fact that, soon after the commission of the crime, A absconded

from his house, is relevant, under section eight, as conduct subse-

quent to and afiected by facts in issue.

The fact that, at the time when he left home, he had sudden and

urgent business at the place to which he went, is relevant, as

tending to explain the fact that he left home suddenly.

The details of the business on which he left are not relevant, except

in so far as they are necessary to show that the business was sudden

and urgent.

((i.) A sues B for inducing O to break a contract of service made

by him with A. 0, on leaving A's service, says to A, ' I am leaving

you because B has made me a better offer.' This statement is a

relevant fact as explanatory of O's conduct, which is relevant as a

fact in issue.

(e.) A is accused of theft, is seen to give the stolen property to B,

The Indian Evidence Act, \^']2. 155

who is seen to give it to A's wife. B says, as lie delivers it, ' A says

you are to hide this.' B's statement is relevant as explanatory of a

fact which is part of the transaction.

(/.) A is tried for a riot, and is proved to have marched at the head

of a mob. The cries of the mob are relevant as explanatory of the

nature of the transaction.

10. Where there is reasonable ground to believe that two Things

or more persons have conspired together to commit an offence done by

or an actionable wrong, anything said, done, or written by f^^X-a.

any one of such persons in reference to their common inten- reference

to commontion, after the time when such iatention was first entertained design.

by any one of them, is a relevant fact as against each of the

persons believed to be so conspiring, as well for the purpose

of proving the existence of the conspiracy as for the purpose

of showing that any such person was a party to it.

JXlusiration.

Keasonable ground exists for believing that A has joined in a con-

spiracy to wage war against the Queen.

The facts that B procured arms in Europe for the purpose of the

conspiracy, collected money in Calcutta for a like object, D per-

suaded persons to join the conspiracy in Bombay, B published

writings advocating the object in view at Agra, and F transmitted

from Delhi to G- at Cabul the money which had collected at

Calcutta, and the contents of a letter written by H giving an account

of the conspiracy, are each relevant, both to prove the existence of

the conspiracy, and to prove A's complicity in it, although he mayhave been ignorant of all of them, and although the persons by whomthey were done were strangers to him, and although they may have

taken place before he joiaed the conspiracy or after he left it.

11. Facts not otherwise relevant are relevant

—

Whenfacts

(1) if they are inconsistent with any fact in issue or ^se°'^^''

relevant fact

:

relevant

become

(2) if by themselves or in connection with other facts they relevant.

make the existence or non-existence of any fact in issue or

relevant fact highly probable or improbable.

15^ The Indian Evidence Act, 1872.

lUiVLsiffaiions.

(a.) The question is, whether A committed a crime at Calcutta on

a certain day.

The fact that, on that day, A was at Lahore is relevant.

The fact that, near the time when the crime was committed, A was

at a distance from the place where it was committed, which would

render it highly improbable, though not impossible, that he com-

mitted it, is relevant.

(6.) The question is, whether A committed a crime.

The circumstances are such that the crime must have been com-

mitted either by A, B, 0, or D. Every fact which shows that the

crime could have been committed by no one else, and that it was not

committed by either B, 0, or D, is relevant.

In suits for 12. In suits in which damages are claimed, any fact whichdamages,facts tend- Will enable the Court to determine the amount of damages

enabk wMch Ought to be awarded is relevant.

Court to]^3_ "v^iiere the question is as to the existence of any right

determine '-_

joamount or custom, the following facts are relevant :

—

vant. («) Any transaction by which the right or custom in

Facts rele- question was created, claimed, modified, recognised, asserted

right or or denied, or which was inconsistent with its existence

;

(b) Particular instances in which the right or custom was

claimed, recognised, or exercised, or in which its exercise

was disputed, asserted or departed from.

Illustration.

The question is whether A has a right to a fishery. A deed con-

ferring the fishery on A's ancestors, a mortgage of the fishery by A's

father, a subsequent grant of the fishery by A's father, irrecon-

cQable with the mortgage, particular instances in which A's father

exercised the right, or in which the exerciseof the right was stopped

by A's neighbours, are relevant facts.

Facts 14. Facts showing the existence of any state of mind

—

exi'sTenfe^^°^ ^^ intention, knowledge, good faith, negligence, rashness,

of state of ill-will or good-wUl towards any particular person or showingmind or of

.6

body or the existence of any state of body or bodily feelino'—are

feeling. relevant, when the existence of any such state of mind or

body or bodily feeling is in issue or relevant.

custom IS

in question

The Indian Evidence Act, \Z']2. 157

Explanation.—A fact relevant as showing the existence of

a relevant state of mind must show that it exists, not

generally, but in reference to the particular matter in question.

JSmstrations.

(a.) A ia accused of receiving stolen goods knowing them to be

stolen. It is proved ttat lie was in possession of a particular stolen

article.

The fact that, at the same time, he was in possession of manyother stolen articles is relevant, as tending to show that he knew each

and all of the^articles of which he was in possession to be stolen.

(6.) A is accused of fraudulently delivering to another person

a piece of counterfeit coin which, at the time when he delivered it, he

knew to be counterfeit.

The fact that at the time of its delivery, A was possessed of a

number of other pieces of counterfeit coin, is relevant.

(c.) A sues B for damage done by a dog of B's which B knew to be

ferocious.

The facts that the dog had previously bitten X, T, and Z, and that

they had made complaints to B, are relevant.

(d.) The question is, whether A, the accepter of a biU of exchange

knew that the name of the payee was fictitious.

The fact that A had accepted other bills drawn in the same manner

before they could have been transmitted to him by the payee if the

payee had been a real person, is relevant, as showing that A knewthat the payee was a fictitious person.

(e.) A is accused of defaming B by publishing an imputation

intended to harm the reputation of B.

The fact of previous publications by A respecting B, showing iU-

will on the part ofA towards B, is relevant, as proving A's intention

to harm B's reputation by the particular publication in question.

The facts that there was no previous quarrel between A and Band thatA repeated the matter complained of as he heard it, are re^

levant, as showing that A did not intend to harm the reputation

ofB.

(/.) A is sued by B for fraudulently representing to B that C was

solvent, whereby B, being induced to trust 0, who was insolvent,

suffered loss.

The fact that, at the time when A represented C to be solvent, Cwas supposed to be solvent by his neighbours and by persons

dealing with him, is relevant, as showing that A made the repre-

sentation in good faith.

158 The Indian Evidence Act, \'&'] 2.

ig.) A is sued by B for the price of work done by B, upon a bouse

of which A is owner, by the order of G, a contractor.

A's defence is that B's contract was with 0. •

The fact that A paid for the work in question is relevant, as

proving that A did, in good faith, make over to the management

of the work in question, so that was in a position to contract with

B on C's own account, and not as agent for A.

{h.) A is accused of the dishonest misappropriation of property

which he had found, and the question is whether, when he appro-

priated it, he believed in good faith that the real owner could not be

found.

The fact that public notice of the loss of the property had been

given in the place where A was, is relevant, as showing that A did

not in good faith believe that the real owner of the property could

not be found.

The fact that A knew, or had reason to believe, that the notice was

given fraudulently by who had heard of the loss of the property

and wished to set up a false claim to it, is relevant, as showing that

the fact that A knew of the notice did not disprove A's good

faith.

(i.) A is charged with shooting at B with intent to kiU him. In

order to show A's intent, the fact of A's having previously shot at Bmay be proved.

(J.) A is charged with sending threatening letters to B. Threaten-

ing letters previously sent by A to B may be proved, as showing

the intention of the letters.

(&.) The question is, whether A has been guilty of cruelty towards

B, his wife.

Expressions of their feeling towards each other shortly before or

after the alleged cruelty, are relevant facts.

(l.) The question is, whether A's death was caused by poison.

Statements made by A during his illness as to his symptoms are

relevant facts.

(m.) The question is, what was the state of A's health at the time

when an assurance on his life was effected.

Statements made by A as to the state of his health at or near the

time in question, are relevant facts.

{n.) A sues B for negligence in providing him with a carriage for

hire not reasonably fit for use, whereby A was injured.

The fact that B's attention was drawn on other occasions to the

defect of that particular carriage, is relevant.


The fact that B was habitually negligent about the carriages

which he let to hire, is irrelevant.

(0.) A is tried for the murder of B by intentionally shooting himdead.

The fact that A, on other occasions, shot at B is relevant, as

showing his intention to shoot B.

The fact that A was in the habit of shooting at people with intent

to murder them, is irrelevant.

(p.) A is tried for a crime.

The fact that he said something indicating an intention to commit

that particular crime, is relevant.

The fact that he said something indicating a general disposition to

commit crimes of that class, is irrelevant.

15. "When there is a question whether an act was acci- Facts

dental or intentional, the fact that such act formed part of a question

series of similar occurrences, in each of which the person^c't^^'^

doing the act was concerned, is relevant. accidental

or inten-

lllnitrati<ms.

(a.) A is accused of burniag down his house in order to

obtain money for which it is iasnred.

The facts that A lived in several houses successively, each of

which he insured, in each of which a fire occurred, and after each

of which fires A received payment from a different insurance

office, are relevant, as tending to show that the fires were not

accidental.

(&.) A is employed to receive money from the debtors of B.

It is A's duty to make entries in a book showing the amounts re-

ceived by him. He makes an entry showing that on a particular

occasion he received less than he really did receive.

The question is, whether this false entry was accidental or inten-

tional.

The fact that other entries made by A in the same book are false,

and that the false entry is in each case in favour of A, are relevant

(c.) A is accused of fraudulently delivering to B a counterfeit

rupee.

The question is, whether the delivery of the rupee was accidental

The facts that, soon before or soon after the delivery to B, Adelivered counterfeit rupees to C, D and E, are relevant, as showing

that the delivery to B was not accidental.

tional.

l6o The Indian Evidence Act, 1872.

Existence 16. When there is a question whether a particular act was

of business doiG, the existence of any course of business, according to

when rele--^Y^y:^ it naturally would have been done, is a relevant fact.

Illwtrations.

(a.) The question is, whether a particular letter was despatched.

The facts that it was the ordinary course of business for all letters

put in a certain place to be carried to the post, and that that particu-

lar letter was put into that place, are relevant.

(6.) The question is, whether a particular letter reached A. The

facts that it was posted in due course, and was not returned through

the Dead Letter OflSce, are relevant.

Admissions.

Admission 17. An admission is a statement, oral or documentary,

defined. -wrhich Suggests any inference as to any fact in issue or rele-

vant fact, and which is made by any of the persons, and

imder the circumstances, hereiaafter mentioned.

Admission 18. Statements made by a party to the proceeding, or by—by party ^^ agent to any such party, whom the Court regards, under

ceedingor the circumstanccs of the case, as expressly or impliedlyhis agent

;

, ...authorized by him to make them, are admissions,

by suitor in Statements made by parties to suits, suing or sued in a

tadTC^"" representative character, are not admissions, unless they were

character: made while the party making them held that character.

Statements made by

—

by party (1-) psrsons who have any proprietary or pecuniary interest

interestedjj^ ^]^g subject-matter of the proceeding, and who make the

by person statement in their character of persons so interested, or

interest (2.) persons from whom the parties to the suit have derived

^"^^' their interest in the subject-matter of the suit,

are admissions, if they are made during the continuance of

the interest of the persons making the statements.

Admis- 1^- Statements made by persons whose position or liability

sions by^^ j^g neccssary to prove as against any party to the suit, are

whose admissions, if such statements would be relevant as against

must be such pei'sons in relation to such position or liability in a suit

The Indian Evidence Aci, i8j7. i6i

brought by or against them, and if they are made whilst the proved as

person making them occupies such position or is subject to pf^Jyto

such liability. si"t-

Illustration.

A undertakes to collect rents for B.

B sues A for not collecting rent due from to B.

A denies that rent was due from to B.

A statement by C that he owed B rent is an admission, and is a

relevant fact as against A, if A denies that did owe rent to B.

20. Statements made by persons to whom a party to the Admissions

suit has expressly referred for information in reference to a elpressiyre-

matter in dispute are admissions. ^^'^'^^^ '° ^yparty to suit

Illustration.

The question is, whether a horse sold by A to B is sound.

A says to B— ' Go and ask 0, knows all about it.' C's statement

is an admission.

21. Admissions are relevant, and may be proved as against Proof of

the person who makes them, or his representative in interest . against

but they cannot be proved by or on behalf of the person who P^^^9^J r J r making

makes them or by his representative in interest, except in them, and

. by or onthe following cases :

—

their be-

(1.) An admission may be proved by or on behalf of the

person making it, when it is of such a nature that, if the

person making it were dead, it would be relevant as between

third persons under section thirty-two.


person making it, when it consists of a statement of the ex-

istence of any state of mind or body, relevant or in issue,

made at or about the time when such a state of mind or body

existed, and is accompanied by conduct rendering its false-

hood improbable.


person making it, if it is relevant otherwise than as an ad-

mission.

half.

1 62 The Indian Evidence Act, 1872.

Illustrations.

(a.) The question between A and B is, whether a certain

deed is or is not forged. A affirms that it is genuine, B that it is

forged.

A may prove a statement by B that the deed is genuine, and B may

prove a statement by A that the deed is forged ; but A cannot prove

a statement by himself that the deed is genuine, nor can B prove a

statement by himself that the deed is forged.

(6.) A, the captain of a ship, is tried for casting her away.

Evidence is given to show that the ship was taken out of her

proper course.

A produces a book kept by him in the ordinary course of his

business, showing observations alleged to have been taken by him

from day to day, and indicating that the ship was not taken out of her

proper course. A may prove these statements, because they would be

admissible between third parties, ifhe were dead, under section thirty-

two, clause (two).

(c.) A is accused of a crime committed by him at Calcutta.

He produces a letter written by himself and dated at Lahore on that

dg^y, and bearing the Lahore post-mark of that day.

The statement in the date of the letter is admissible, because,

if A were dead, it would be admissible under section thirty-two,

clause (two.)

(d.) A is accused of receiving stolen goods knowing them to be

stolen.

He offers to prove that he refused to sell them below their

value.

A may prove these statements, though they are adnyssions,

because they are explanatory of conduct influenced by facts in

issue.

(e.) A is accused of fraudulently having in his possession counter-

feit coin which he knew to be counterfeit.

He offers to prove that he asked a skilful person to examine the

coin, as he doubted whether it was counterfeit or not, and that that

person did examine it and told him it was genuine.

A may prove these facts for the reasons stated in the last preceding

illustration.

When oral ^^- ^^^ admissions as to the contents of a document are

admissions not relevant, unless and until the party proposing to prove.

tents of them shows that he is entitled to give secondary evidence of

The Indian Evidence Act, xZ"] 2. 163

the contents of such document under the rules hereinafter documents

contained, or unless the genuineness of a document produced y^t!^^^'

is in question.

23. In civU cases no admission is relevant, if it is made Admis-

either upon an express condition that evidence of it is not civil cases,

to he given, or imder circumstances from which the Court ^^^" '^^'^'

can infer that the parties agreed together that evidence of it

should not he given.

Explanation.—Nothing in this section shall be taken to

exempt any barrister, pleader, attorney or vakil from giving

evidence of any matter of which he may be compelled to give

evidence under section one hundred and twenty-six.

24. A confession made by an accused person is irrelevant Confession

in a criminal proceedmg, if the making of the confession induce-^

appears to the Court to have been caused by any inducement,JjJ™^'^

threat or promise, having reference to the charge against the promise

. .when irre-

accused person, proceeding from a person m authority and levant in

sufficient, in the opinion of the Court, to give the accused p",êed-

person grounds, which would appear to him reasonable, for '"S-

supposing that by making it he would gain any advantage or

avoid any evil of a temporal nature in reference to the pro-

ceedings against him. „ , .° ° Confession

25. No confession made to a Police officer, shall be proved to Police

. , -, J. on officer notas agamst a person accused 01 any onence. to be

26. No confession made by any person whilst he is in the P^°''^^-

. . Confession

custody of a Police officer, unless it be made m the im- by accused

mediate presence of a Magistrate, shall be proved as against custody of

such person.^°ll^

"°'

27. Provided that, when any fact is deposed to as discovered provedagainst

in consequence of information received from a person accused him.

of any offence, in the custody of a Police officer, so much of of^îâ-

such information, whether it amounts to a confession or not, ''^^f:' ceivedirom

as relates distinctly to the fact thereby discovered, may be accusedmaybe

proved. proved.

28. If such a confession as is referred to in section twenty- Confession

. . 1 • J made after

four is made after the impression caused by any such induce- removal of


impression

caused byinduce-

ment,threat, or

promise,

relevant.

Confession

otherwise

relevant

not to be-

come irre-

levant be-

cause of

promise of

secrecy,

&c.

Considera-

tion of

provedconfession

affecting

personmaking it

and others

jointly

under trial

for sameoffence.

Admis-sions notconclusive

proof, butmay estop.

Cases in

vfhich

statement

of relevant

fact by per-

son who is

ment, threat or promise has, in the opinion of the Court, been

fully removed, it is relevant.

29. If such a confession is otherwise relevant, it does not

become irrelevant merely because it was made under a pro-

mise of secrecy, or in consequence of a deception practised

on the accused person for the purpose of obtaining it, or

when he was drunk, or because it was made ra answer to

questions which he need not have answered, whatever may

have been the form of those questions, or because he was not

warned that he was not bound to make such confession, and

that evidence of it might be given against him.

30. When more persons than one are being tried jointly

for the same offence, and a confession made by one of such

persons affecting himself and some other of such persons is

proved, the Court may take into consideration such confession

as against such other person as well as against the person

who makes such confession.

niusiraiions.

(a.) A and B are jointly tried for the murder of G. It is proved

that A said,—

' B and I murdered C The Court may consider the

effect of this confession as against B.

(6.) A is on his trial for the murder of 0. There is evidence to

show that was murdered by A and B, and that B said,—' A and I

murderedCThis statement may not be taken into consideration by the Court

against A, as B is not being jointly tried.

31. Admissions are not conclusive proof of the matters

admitted, but they may operate as estoppels imder the pro-

visions hereinafter contained.

Statements by Persons who cannot be called as

Witnesses.

32. Statements, written or verbal, of relevant facts made

by a person who is dead, or who cannot be found, or who has

become incapable of giving evidence, or whose attendance

cannot be procured without an amount of delay or expense

The Indian Evidence Act, x?,']2. 165

wliicli, under the circumstances of the case, appears to the dead or

Court unreasonable, are themselves relevant facts in the found, &c.

following cases :— *= '^"i"^''"'-

(1) "When the statement is made by a person as to the whenitre-

cause of his death, or as to any of the circumstances of the cbmx of

transaction which resulted in his death, in cases in which the ^^^^^'>

cause of that person's death comes into question.

Such statements are relevant whether the person who made

them was or was not, at the time when they were made,

under expectation of death, and whatever may be the nature

of the proceeding in which the cause of his death comes into

question.

(2) When the statement was made by such person in the or is made

ordinary course of business, and in particular when it consists business

;

of any entry or memorandum made by him in books kept in

the ordinary course of business, or in the discharge of pro-

fessional duty ; or of an acknowledgment written or signed by

him of the receipt of money, goods, securities or property of

any kind ; or of a document used in commerce written or

signed by him, or of the date of a letter or other document

usually dated, written or signed by him.

(3) When the statement is against the pecuniary or pro- or against

prietary interest of the person making it, or when, if true, it.^^^^If.

would expose him or would have exposed him to a criminal

prosecution or to a suit for damages.

(4) When the statement gives the opinion of any such or gives

person, as to the existence of any public right or custom or option as

matter of public or general interest, of the existence of which, right or

if it existed, he would have been likely to be aware, and matters' of

when such statmeent was made before any controversy as tof^j^t

. '"'

such right, custom or matter had arisen.

(5) When the statement relates to the existence of any orrelatesto

relationship between persons as to whose relationship the^f ^kt^on-

person making the statement had special means of know- ship; iyiCr^^^

ledge, and when the statement was made before the question ^^ '^'^'p^^^"^

in dispute was raised.

i66 The Indian Evidence Act, 1872,

or IS

made in

will or

deed rela-

ting to

family

affairs j

or in docu-ment rela-

ting to

transaction

mentionedinsection

13, clause

or is madeby several

persons

and ex-

presses

teeling re-

levant to

matter in

question.

(6) When the statement relates to the existence of any

relationship nsetween persons deceased, and is made m any

will or deed relating to the affairs of the family to which

any such deceased person belonged or in any family pedigree,

or upon any tombstone, family portrait or other thing on

which such statements are usually made, and when such

statement was made before the question in dispute was

raised.

(7). When the statement is contained in any deed, will or

other document which relates to any such transaction as is

mentioned in section thirteen, clause {a).

(8) When the statement was made by a number of persons

and expressed feelings or impressions on their part relevant

to the matter in question.

TWns^ations.

(a.) The question is, wtether A was murdered byB ; or

A dies of injuries received in a transaction in the course of wUchshe was ravished. The question is, whether she was ravished by

B; or

The question is, whether A was killed by B under such circum-

stances that a suit would lie against B by A's widow.

Statements made byA as to the cause of his or her death, referring

respectively to the murder, the rape, and the actionable wrong under

consideration, are relevant facts.

(6.) The question is as to the date of A's birth.

An entry in the diary of a deceased surgeon, regularly kept in the

course of business, stating that, on a given day, he attended A's

mother and delivered her of a son, ia a relevant fact,

(c.) The question is, whether A was in Calcutta on a given day.

A statement in the diary of a deceased solicitor, regularly kept

in the course of business, that, on a given day, the solicitor at-

tended A at a place mentioned, in Calcutta, for the purpose of

conferring with him upon specified business, is a relevant fact.

(Si) The question is, whether a ship sailed from Bombay harbour

on a given day.

A letter written by a deceased member of a merchant's firm, bywhich she was chartered, to their correspondents in London to

whom the cargo was consigned, stating that the ship sailed on a

given day from Bombay harbour, is a relevant fact.


(e.) The question is, whether rent was paid to A for certain land.

A letter from A's deceased ageflt to A, saying that he had re-

ceived the rent on A's acoonnt, and held it at A's orders, is a

relevant fact.

(/.) The question is whether A and B were legally married.

The statement of a deceased clergyman that he married themnnder such circumstances that the celebration would be a crime, is

relevant.

(g^ The question is, whether A, a person who cannot be found,

wrote a letter on a certain day. The fact that a letter written by himis dated on that day, is relevant.

(fe.) The question is, what was the cause of the wreck of a ship.

A protest made by the captain, whose attendance cannot be pro-

cured, is a relevant fact.

(i.) The question is, whether a given road is a public way.

A statement by A, a deceased headman of the village, that the road

was public, is a relevant fact.

(j.) The question is, what was the price of grain on a certain day

in a particular market. A statement of the price, made by a de-

ceased banya in the ordinary course ofhis business, is a relevant fact.

(fc.) The question is, whether A, who is dead, was the father of B.

A statement by A that B was his son, is a relevant fact.

(Z.) The question is, what was the date of the birth of A.

A letter from A's deceased father to a friend, announcing the birth

of A on a given day, is a relevant fact.

(m.) The question is, whether, and when, A and B were married.

An entry in a memorandum-book by C, the deceased father of B, of

his daughter's marriage with A on a given date, is a relevant fact.

(w.) A sues B for a libel expressed in a painted caricature exposed

in a shop window. The question is as to the similarity of the cari-

cature and its libeUous character. The remarks of a crowd of spec-

tators on these points may be proved.

33. Evidence given by a witness in a judicial proceeding, Relevancy

or before any person authorized by law to take it, is relevant"yi^g'j^^™

for the purpose of proving, in a subsequent judicial proceed- for prov-

ing, or in a later stage of the same judicial proceeding, the sequent

truth of the facts which it states, when the witness is dead fng.'^tL"

or cannot be found, or is incapable of giving evidence, or isf^^^^^*^

kept out of the way by the adverse party, or if his presence in stated.

cannot be obtained without rn amount of delay or expense

i68 The Indian Evidence Act, 1872.

Entries in

books of

accountwiien rele-

vant.

Relevancyof entry in

public re-

cord, madein perform-

ance of

duty.

Relevancyof state-

ments in

maps,charts andplans.

which, under the circumstances of the case, the court con-

siders unreasonable.

Provided

—

that the proceeding was between the same parties or their

representatives in interest

:

that the adverse party in the first proceeding had the right

and opportunity to cross-examine

;

that the questions in issue were substantially the same in

the first as in the second proceeding.

Explanation.—^A criminal trial or inquiry shall be deemed

to be a proceeding between the prosecutor and the accused

within the meaning of this section.

Statements made under special Circumstances.

J34. Entries in books of account, regularly kept in the

course of business, are relevant whenever they refer to a

matter into which the Court has to inquire, but such state-

ments shall not alone be sufficient evidence to charge any

person with liability.

TOMsivaiion.

A sues B for Es. 1,000, and shows entries in the account-books

showing B to be indebted to him to this amount. The entries are

relevant, but are not sufficient, without other evidence, to prove the

debt.

35. An entry in any public or other official book, register,

or record, stating a fact in issue or relevant fact, and made

by a public servant in the discharge of his official duty, or

by any other person in performance of a duty specially

enjoined by the law of the country in which such book,

register, or record is kept, is itself a relevant fact.

36. Statements of facts in issue or relevant facts, made in

published maps or charts generally offered for public sale, or

in maps or plans made under the authority of Government,

as to matters usually represented or stated in ^uch maps,

charts, or plans, are themselves relevant facts.

37. "When the Court has to form an opinion as to the

The Indian Evidence Act, i^ji. 169

existence of any fact of a public nature, any statement of it, Relevancy

made in a recital contained in any Act of Parliament, or in menfas to

any Act of the Governor General of India in Council, or of ^'^^°^public na-

the Governors in Council of Madras or Bombay, or of the ture, con-

Lieutenant-Governor in Council of Bengal, or in a notification certain

of the Government appearing in the Gazette of India, or in ^otifica-

the Gazette of any Local Government, or in any printed ''°"^-

paper purporting to be the London Gazette or the Government

Gazette of any colony or possession of the Queen, is a relevant

fact.

38. When the Court has to form an opinion as to a law of Relevancy

any country, any statement of such law contained in a book ments as

purporting to be printed or published under the authoritycontained

of the Government of such country and to contain any such '" '^^^^ •' books.

law-, and any report of a ruling of the Courts of such country

contained in a book purporting to be a report of such rulings,

is relevant.

How MUCH OF A Statement is to be pkoved.

39. When any statement of which evidence is given forms what evi-

part of a longer statement, or of a conversation or part of an ^g"*^? '°

isolated document, or is contained in a document which forms ^''''="

statement

part of a book, or of a connected series of letters or papers, forms part

evidence shall be given of so much and no more of the state- verea't°on,

ment, conversation, document, book, or series of letters or'lo^nient,

' ' book, or

papers as the Court considers necessary in that particular series of

case to the full understanding of the nature and effect of the papers.

statement, and of the circumstances under which it was made.

Judgments of Courts of Justice, when relevant.

40. The existence of any judgment, order or decree which Previous

by law prevents any Court from taking cognizance of a suit ielera^n" to

or holding a trial, is a relevant fact when the question is ^'^''f^e-

° ^ cond suit

whether such Court ought to take cognizance of such suit, or for trial.

to hold such trial.

41. A final judgment, order or decree of a competent Relevancyof certain

N

i7o The Indian Evidence Act, 1872,

judgments Court, in the exercise of probate, matrimonial, admiralty or

&c.^^uiis-^' insolvency jurisdiction, which confers upon or takes awaydiction.

fpQj^ g^j^y. pgj^Qj^ a,ny legal character, or which declares any

person to be entitled to any such character, or to be

entitled to any specific thiug, not as against any specified

person but absolutely, is relevant when the existence of any

such legal character, or the title of any such person to any

such thing, is relevant.

Such judgment, order or decree is conclusive proof

that any legal character, which it confers accrued at the"

time when such judgment, order or decree came into opera-

tion;

that any legal character, to which it declares any such

person to be entitled, accrued to that person at the time when

such judgment.declares it to have accrued to that person

;

that any legal character which it takes away from any, such

person ceased at the time from which such judgment declared

that it had ceased or should cease

;

and that any thing to which it declares any person to be

so entitled was the property of that person at the time from

which such judgment .declares that it had been or should be

his property.

42. Judgments, orders or decrees other than those

mentioned in section forty-one, are relevant if they relate to

matters of a public nature relevant to the enquiry ; but such

judgments, orders or decrees are not conclusive proof of that

those mea- which they state.tioned in -m j. i-

section 41.niMstration.

A sues B for trespass on his land. B alleges tlie existence of a

pnbKc right of way over the land, which A denies.

The existence of a decree in favour of the defendant, in a suit by

A against for a trespass onthe same land, in which C alleged the

existence of the same right of way, is relevant, but it is not conclusive

proof that the right of way exists.

43. Judgments, orders or decrees, other than those

Relevancyand effect

of judg-ments or-

ders or

decrees,

other than

Judg'

"her'ftan mentioned in sections forty, forty-one and forty-two, are

The Indian Evidence Act, 1872. 1 7

1

irrelevant, unless the existence of such judgment, order or those men-

decree, is a fact in issue, or is relevant under some other seSfon™

provision of this Act. 40-42.when rele-

Illustrations. vant.

(a.) A and B separately sue for a libel wHch reflects upon each.

of them. in each case says, that the matter alleged to be libellous

is true, and the circumstances are such that it is probably true in each

case, or in neither.

A obtains a decree against C for damages on the ground that Cfailed to make out his justifi.cation. The fact is irrelevant as between

BandO.

(6.) A prosecutes B, for adultery, with 0, A's wife.

B denies that C is A's wife, but the court convicts B of adultery.

Afterwards C is prosecuted for bigamy in marrying B during A's

lifetime. C says that she never was A's wife.

The judgment against B is irrelevant as against 0.

(c.) A prosecutes B for stealing a cow from him. B is convicted.

A, afterwards, sues G for the cow, which B had sold to him before

his conviction. As between A and C, the judgment against B is

irrelevant.

(d.) A has obtained a decree for the possession of land against BC, B's son, murders A in consequence.

The exi3tence_of the judgment is relevant, as showing motive for a

crime.

44. Any party to a suit or other proceeding may show that Fraud or

any judgment, order or decree which is relevant under obtaining'"

section forty, forty-one or fqrty-two, and which has been judgment,

proved by the adverse party, was delivered by a Court not petency of

competent to deliver it, or was obtained by fraud or collusion, b^pro^d

Opinions of third Peksons, when relevant.

45. When the Court has to form an opinion upon a point Opinions

„ . , J • 1 , -J (. 1 1 of experts,

of foreign law, or of science or art, or as to identity ot hand-

writing, the opinions upon that point of persons specially.,, . ,.

skilled in such foreign law, science or art, are relev3,nt Tacts. ' ''

Such persons are called experts.

Illustrations,

(a.) The question is, whether the death ofA was caused by poison.


The opinions of experts as to the symptoms produced by the poison

by which A is supposed to have died, are relevant.

(6.) The question is, whether A, at the time of doing a certain act,

was, by reason of unsoundness of mind, incapable of knowing the

nature of the act, or that he was doing what was either wrong or

contrary to law.

The opinions of experts upon the question whether the symptoms

exhibited by A commonly show unsoundness of mind, and whether

such unsoundness of mind usually renders persons incapable of

knowing the nature of the acts which they do, or of knowing that

what they do is either wrong or contrary to law, are relevant.

(c.) The question is, whether a certain document was written by

A. Another document is produced which is proved or admitted to

have been written by A.

The opinion of experts on the question whether the two documents

were written by the same person or by different persons, are relevant.

46. Facts, not otherwise relevant, are relevant if theying upon

.

'

opinions of Support Or are inconsistent with the opinions of experts, whenexperts.

^^^j^ opinions are relevant.

Factsbear-

Opinionas to

handwrit-

ing, whenrelevant.

TQ,usira,tions.

(a) The question is, whether A was poisoned by a certain poison.

The fact that other persons, who were poisoned by that poison,

exhibited certaiu symptoms which experts afBrm or deny to be the

symptoms of that poison, is relevant.

(6.) The question is, whether an obstruction to a harbour is

caused by a certain sea-wall.

The fact that other harbours similarly situated in other resnects,

but where there were no such sea-walls, began to be obstructed at

about the same time is relevant.

47. When the Court has to form an opinion as to the

person by whom any document was written or signed, the

opinion of any person acquainted with the handwritino- of

the person by whom it is supposed to be written or signed

that it was or was not written or signed by that person, is a

relevant fact.

Explanation.—A person is said to be acquainted with the

handwriting of another person when he has seen that person

write, or when he has received documents purporting to be


written by tliat person in answer to documents written by

himself or under his authority and addressed to that person,

or when, in the ordinary course of business, documents

purporting to be written by that person have been habitually

submitted to him.

IWasiraiion.

The question is, wtether a given letter is in tte handwriting of A,

a merchant in London.

B is a merchant in Calcutta, who has written letters addressed to

A and received letters purporting to be written by him. C is B's

clerk, whose duty it was to examine and file B's correspondence.

D is B's broker, to whom B habitually submitted the letters pur-

porting to be written by A for the purpose of advising with him

thereon.

The opinions of B, and D on the question whether the letter is

in the handwriting of A are relevant, though neither B, C nor Dever saw A write.

48. When the Court has to form an opinion as to the Opinion as

. , , . . to exist-

existence of any general custom or right, the opmions, as to ence of

the existence of such custom or right, of persons who would "ustom^

be likely to know of its existence if it existed, are relevant. '^^^^ ^^^'

. . .y^rA.

Uxplanation.—The expression 'general custom or right'

includes customs or rights common to any considerable class

of persons.

HhistraUon.

The right of the villagers of a particular village to use the water of

a particular well is a general right within the meaning of this section.

49. When the Court has to form an opinion as to

—

Opinions

the usages and tenets of any body of men or family, ^ages,

the constitution and government of any religious or t™^'^' ^j^-'

charitable foundation, or vant.

the meaning of words or terms used in particular districts

or by particular classes of people,

the opinions of persons having special means of knowledge

thereon, are relevant facts.

50. When the Court has to form an opinion as to the Opinion

relationship of one person to another, the opinion, expressed tionship,


Groundsof opinion

when rele-

vant.

when rele- by conduct, as to the existence of such relationship, of any

person who, as a member of the family or otherwise, has

special means of knowledge on the subject, is a relevant fact

:

Provided that such opinion shall not be suf&cient to prove a

marriage in proceedings under the Indian Divorce Act, or in

prosecutions under section four hundred and ninety-four,

four hundred and ninety-iive, four hundred and ninety-seven

or four hundred and ninety-eight of the Indian Penal Code.

JUusirations.

(a.) The question is, whether A and B were married.

The fact that they were usually received and treated by their

friends as married persons, is relevant.

(6.) The question is, whetherA was the legitimate son of B. The

fact that A was always treated as such by the members of the family,

is relevant.

51. Whenever the opinion of any living person is rele-

vant, the grounds on which such opinion is based are also

relevant.

likhshration.

An expert may give an account of experiments performed by him

for the purpose of forming his opinion.

Chaeactee when eelevant.

52. In civil cases, the fact that the character of any person

concerned is such as to render probable or improbable any

conduct imputed to him, is irrelevant, except in so far as

such character appears from facts otherwise relevant.

53. In criminal proceedings, the fact that the person

accused is of good character, is relevant.

54. In criminal proceedings, the fact that the accused

person has been previously convicted of any offence is rele-

vant ; but the fact that he has a bad character is irrelevant,

unless evidence has been given that he has a good character,

in which case it becomes relevant.

Eayplanation.—This section does not apply to cases in

which the bad character of any person is itself a fact in

issue.

In civil

cases cha-

racter to

prove con-

duct im-puted, irre-

levant.

In criminal

cases, pre-

vious goodcharacter

relevant.

In criminal

proceed-

ings pre-

vious con-

viction

relevant,

but not

previous

bad cha-

racter, ex-

cept in

reply.

TJu Indian Evidence Act, xZ"] 2. 175

55. In civil cases, the fact that the character of any person Character

is such as to affect the amount of damages which he ought damages"^

to receive, is relevant.

Explanation.—In sections iifty-two, fifty-three, fifty-four

and fifty-five, the word ' character ' includes both reputation

and disposition ; but evidence may be given only of general

reputation and general disposition, and not of particular acts

by which reputation or disposition were shown.


Paet II.

ON PEOOF.

Chaptee III.

—

Facts which need not be proved.

Facts judi- 56. Xo fact of whicli the Court will take judicial noticedaily no-ticeable need be proved.

proved. ^7. The Court shall take judicial notice of the following

Facts of facts :

—

Court must (!) All laws Or rules having the force of law now or

ciafnotice, heretofore in force, or hereafter to be in force, in any part of

British India

:

(2.) AU public Acts passed or hereafter to be passed by

Parliament, and all local and personal Acts directed by

Parliament to be judicially noticed :

(3.) Articles of War for Her Majesty's Army or Navy

:

(4.) The course of proceeding of Parliament and of the

Councils for the purposes of making Laws and Eegulations

established under the Indian Councils' Act, or any other law

for the time being relating thereto :

Explanation.—The word ' Parliament,' in clauses (two) and

(four), includes

—

1. The Parliament of the United Kingdom of Great

Britain and Ireland

;

2. The Parliament of Great Britain

;

3. The Parliament of England

;

4. The Parliament of Scotland, and

5. The Parliament of Ireland :

(5.) The accession and the sign manual of the Sovereign

The Indian Evidence Act, 1872. i77

for the time being of the United Kingdom of Great Britain

and Ireland

:

(6.) All seals of which English Courts take judicial notice

:

the seals of all the Courts of British India, and of aU Courts

out of British India, established by the authority of the

Governor General or any Local Government in Council: the

seals of Courts of Admiralty and Maritime Jurisdiction and

of Notaries Public, and all seals which any person is autho-

rized to use by any Act of Parliament or other Act or

Eegulation having the force of law in British India

:

(7.) The accession to office, names, titles, functions, and

signatures of the persons filling for the time being any public

office in any part of British India, if the fact of the appoint-

ment to such office is notified in the Gazette, of India, or in

the official Gazette of any Local Government

:

(8.) The existence, title, and national flag of every State or

Sovereign recognised by the British Crown :

(9.) The divisions of time, the geographical divisions of the

world, and public festivals, fasts and holidays notified in the

official Gazette :

(10.) The territories under the dominion of the British

Crown

:

(11.) The commencement, continuance, and termination of

hostilities between the British Crown and any other State or

body of persons

:

(12.) The names of the members and officers of the Court

and of their deputies and subordinate officers and assistants,

and also of all officers acting in execution of its process, and

of all advocates, attornies, proctors, vakils, pleaders and other

persons authorized by law to appear or act before it

:

(13.) The rule of the road, ct, Qe^ oyoI- oaa.

In all these cases, and also in all matters of public history,

literature, science or art, the Court may resort for its aid to

appropriate books or documents of reference.

If the Court is called upon by any person to take judicial

notice of any fact, it may refuse to do so, unless and until

178 TIu Indian Evidence Act, 1872.

such person produces any such book or document as it may

consider necessary to enable it to do so.

Facts ad- 68. No fact need be proved in any proceeding whicli thp

not be parties thereto or their agents agree to admit at the hearing,

or which, before the hearing, they agree to admit by any

writing under their hands, or which by any rule of pleading

in force at the time they are deemed to have admitted by

their pleadings : Provided that the Court may, in its discre-

tion, require the facts admitted to be proved otherwise than

by such admissions.

Chapter IV.

—

Of oral Evidence.

Proof of 59. ALL facts, except the contents of documents, may be

oral evi- proved by oral evidence,ence.

^^ Q\z!^ evidence must, in all cases, whatever, be direct

:

Oral evi-_

;> i > 7

dencemust That is to Say

—

be direct.

I

If it refers to a fact which could be seen, it must be the

' evidence of a witness who says he saw it

;

i If it refers to a fact which could be heard, it must be the

evidence of a witness who says he heard it

;

If it refers to a fact which could be perceived by any other

" sense or in any other manner, it must be the evidence of

a witness who says he perceived it by that sense or in that

; manner

;

If it refers to an opinion or to the grounds on which that

opinion is held, it must be the evidence of the person who

holds that opinion on those grounds

:

Provided that the opinions of experts expressed in any

treatise commonly offered for sale, and the grounds on which

such opinions are held, may be proved by the production of

such treatises if the author is dead or cannot be found, or has

become incapable of giving evidence, or cannot be called as a

witness without an amount of delay or expense which the

Coiut regards as unreasonable :

Provided also, that, if oral evidence refers to the existence

or condition of any material thing other than a document, the

The Indian Evidence Act, I'i'] 2. 179

Court may, if it thinks fit, require the production of such

material thing for its inspection.

Chapter V.

—

Of documentaey Evidence.

61. The contents of documents may be proved either by Proof of

primary or by secondary evidence. document"!^

62. Primary evidence means the document itself produced Primary

for the inspection of the Court.evidence.

Explanation 1.—Where a document is executed in several

parts, each part is primary evidence of the document

:

Where a document is executed in counterpart, each counter-

part being executed by one or some of the parties only,

each counterpart is primary evidence as against the parties

executing it.

Explanation 2.—Where a number of documents are all

made by one uniform process, as in the case of printing,

lithography, or photography, each is primary evidence of the

contents of the rest ; but where they are all copies of a

common original, they are not primary evidence of the con-

tents of the original.

TXlustration.

A person is shown to have been in possession of a number of

placards, all printed at one time from one original. Any one of the

placards is primary evidence of the contents of any other, but no one

of them is primary evidence of the contents of the original.

63. Secondary evidence means and includes

—

Secondary

(1.) Certified copies given under the provisions hereinafter

contained

;

(2.) Copies made from the original by mechanical processes

which in themselves insure the accuracy of the copy, and

copies compared with such copies;

(3.) Copies made from or compared with the original

;

(4.) Counterparts of documents as agaiast the parties who

did not execute them

;

(5.) Oral accounts of the contents of a document given by

some person who has himself seen it.

evidence.

i8o The Indian Evidence Act, 1872.

Tllustraiions.

(a.) A photograph of an original is secondary evidence of its

contents, though the two have not been compared, if it is proved

that the thing photographed was the original.

(6.) A copy compared with a copy of a letter made by a copying

machine is secondary evidence of the contents of the letter, if

it be shown that the copy made by the machine was made from the

original.

(c.) A copy transcribed from a copy, but afterwards compared

with the original, is secondary evidence ; but the copy not so com-

pared is not secondary evidence of the original, although the copy

from which it was transcribed was compared with the original.

(i.) Neither an oral account of a copy compared with the original,

nor an oral account of a photograph or machine-copy of the original,

is secondary evidence of the original.

Proofof 64. Documents must be proved by primary evidence exceptdocuments . ,, i j-i i_- t

by primary m the cases heremaiter mentioned.evidence. gg Secondary evidence may be given of the existence.Cases in . , ,, .

which condition, or contents of a document in the followmgsecondaryevidence CaseS :

reiatmg to/^j^

N WTjien the Original is shown or appears to be in thedocuments ^ ' ° '-'-

may be possession or power

of the person against whom the document is sought to be

proved, or

of any person out of reach of, or not subject to, the process

of the Court, or

of any person legally bound to produce it,

and when, after the notice mentioned in section sixty-six,

such person. does not produce it;

(5.) When the existence, condition or contents of the ori-

gioal have been proved to be admitted in writing by the per-

son against whom it is proved or by his representative ia

interest

;

(c.) When the original has been destroyed or lost, or when

the party offering evidence of its contents cannot, for any

given.

The Indian Evidence Act, \%']2. i8i

other reason not arising from his own default or neglect, pro-

duce it in reasonable time

;

(d) When the origiaal is of such a nature as not to be

easily moveable;

(e.) When the original is a public document within the

meaning of section seventy-four

;

(/.) When the original is a document of which a certified

copy is permitted by this Act, or by any other law in force

in British India, to be given in evidence

;

{g^ When the originals consist of numerous accounts or

other documents which cannot conveniently be examined in

Court, and the fact to be proved is the general result of the

whole collection.

In cases (a.), (c.) and (d,), any secondary evidence of the

contents of the document is admissible.

In case (&.), the written admission is admissible.

In case (e.) or (/.) a certified copy of the document, but no '

other kind of secondary evidence is admissible.

In case {g'), evidence may be given as to the general result

of the documents by any person who has examined them,

and who is skilled in the examination of such documents.

66. Secondary evidence of the contents of the documents Rules as to

refeixed to in section sixty-five, clause (a.), shall not be given """f^

unless the party proposing to give such secondary evidence

has previously given to the party in whose possession or

power the dociiment is,, such notice to produce it as is pre-

scribed by law ; and if no notice is prescribed by law, then

such notice as the Court considers reasonable under the cir-

cumstances of the case

:

Provided that such notice shall not be required in order to

render secondary evidence admissible in any of the following

cases, or in any other case in which the Court thinks fit to

dispense with it :

—

(1.) Wnen the document to be proved is itself a notice

;

(2.) When, from the nature of the case, the adverse party

must know that he w^l be required to produce it

;

notice to

duce.

l82 The Indian Evidence Act, 1872.

Proof of

signature

and hand-writing of

person al-

leged to

havesigned

or written

documentproduced.

Proof of

execution

of docu-ment re-

quired bylaw to beattested.

Proofwhere noattesting

witness

found.

Admissionof execu-

tion byparty to at-

tested do-

cument.

Proofwhenattesting

witness de-

nies the

execution.

Proof ofdocumentnot re-

quired bylaw to beattested.

Compari-son of

(3.) When it appears or is proved that the adverse party

has obtained possession of the original by fraud or force

;

(4.) When the adverse party or his agent has the original

in Court

;

(5.) When the adverse party or his agent has admitted the

loss of the document

;

(6.) When the person in possession of the document is out

of reach of, or not subject to, the process of the Court.

67. If a document is alleged to be signed or to have been

written wholly or in part by any person, the signature or the

handwriting of so much of the document as is alleged to be

in that person's handwriting must be proved to be in his

handwriting.

68. If a document is required by law to be attested, it

shall not be used as evidence until one attesting witness at

least has been called for the purpose of proving its execution,

if there be an attesting witness alive, and subject to the pro-

cess of the Court and capable of giving evidence.

69. If no such attesting witness can be found, or if the

document purports to have been executed in the United

Kingdom, it must be proved that the attestation of one

attesting witness at least is in his handwriting^ and that the

signature of the person executing the document is in the

handwriting of that person.

70. The admission of a party to an attested document of

its execution by himself shall be sufficient proof of its execu-

tion as against him, though it be a document required by

law to be attested.

71. If the attesting witness denies or does not recollect the

execution of the document, its execution may be proved by

other evidence.

72. An attested document not required by law to be

attested may be proved as if it was unattested.

73. In order to ascertain whether a signature, writing, or

seal is that of the person by whom it purports to have been

written or made, any signature, writing, or seal admitted or

The Indian Evidence Act, \Z'] 2. 183

proved to the satisfaction of the Court to have been written sigtiature,

or made hythat person may be compared with the one which ^ai wfth

is to be proved, although that signature, writing, or seal has^-Jted m'

not been produced or proved for any other purpose. proved.

The Court may direct any person present in Court to write

any words or figures for the purpose of enabling the Court to

compare the words or figures so written with any words or

figures alleged to have been written by such person.

Public Documents.

74. The following documents are public documents :

—

Public do-

1. Documents forming the acts or records of the acts,cuments.

(i.) of the sovereign authority,

(ii.) of official bodies and tribunals, and

(iii.) of public officers, legislative, judicial, and executive^

whether of British India, or of any other part of Her Ma-

jesty's dominions, or of a foreign country.

2. Public records kept in India of private documents. pnvate do-

75. AU other documents are private. cuments.

76. Every public officer having the custody of a public Certified

document which any person has a right to inspect, shall give pXuc do-

that person on demand a copy of it on payment of the legal cuments.

fees therefor, together with a certificate written at the foot of

such copy that it is a true copy of such document or part

thereof, as the case may be, and such certificate shall be dated

and subscribed by such officer with his name and his official

title, and shall be sealed, whenever such officer is authorized

by law to make use of a seal ; and such copies so certified

shall be called certified copies.

E^plairmUon.—Any officer who, by the exercise of official

duty, is authorized to deliver such copies, shall be deemed to

have the custody of such documents within the meaning of

this section.Proof of

77. Such certified copies may be produced in proof of the documents

contents of the public documents or parts of the public docu- tion^of

"'^"

ments of which they purport to be copies.co^'i*'^'^


Proof of 78. The following public documents may be proved asother p ,,

official do- lOlloWS :

—

cuments.^j ^ Acts, orders or notifications of the Executive Govern-

ment of British India in any of its departments, or of any

Local Government or any department of any Local Govern-

ment,

by the records of the departments, certified by the heads of

those departments respectively,

or by any document purporting to be printed by order of

any such Government

:

(2.) The proceedings of the Legislatures,

by the journals of those bodies respectively, or by pub-

lished Acts or abstracts, or by copies purporting to be printed

by order of Government

:

(3.) Proclamations, orders or regulations issued by Her

Majesty or by the Privy Council, or by any department of

Her Majesty's Government,

by copies or extracts contained in the London Gazette, or

purporting to be printed by the Queen's printer :

(4.) The acts of the Executive or the proceedings of the

legislature of a foreign country,

by journals published by their authority, or commonly

received in that country as such, or by a copy certified under

the seal of the country or sovereign, or by a recognition

thereof in some public Act of the Governor General of India,

in Council

:

(5.) The proceedings of a mimicipal body in British India,

by a copy of such proceedings, certified by the legal keeper

thereof, or by a printed book purporting to be published by

the authority of such body

:

(6.) Public documents of any other class in a foreign

country,

by the original, or by a copy certified by the legal keeper

thereof, with a certificate under the seal of a Notary Public,

or of a British Consul or diplomatic agent, that the copy is

duly certified by the officer having the legal custody of the


original, and upon proof of the character of the document

according to the law of the foreign country.

Peesumptions as to Documents.

79. The Court shall presume every document purporting Presump-

. -n 1 11 J-otionasto

to be a certificate, certified copy, or other document, which is genuine-

by law declared to be admissible as evidence of any particular [Jged"

"'^"

fact, and which purports to be duly certified by any officer in '^°V^^-

British India, or by any officer in any Native State in alliance

with Her Majesty, who is duly authorized thereto by the

Governor General in Council, to be genuine : Provided that

such document is substantially in the form and purports to

be executed in the manner directed by law in that behalf.

The Court shall also presume that any officer by whomany such document purports to be signed or certified held,

when he signed it, the official character which he claims in

such paper.

80. Whenever any document is produced before any Court, Presump-

purportiag to be a record or memorandum of the evidence, or documents

of any part of the evidence, given by a witness in a judicialas record of

proceeding or before any officer authorized by law to take evidence,

such evidence, or to be a statement or confession by any pri-

soner or accused person, taken in accordance with law, and

purporting to be signed by any Judge or Magistrate, or by

such officer as aforesaid, the Court shall presume

—

that the document is genuine ; that any statements as to

the circumstances under which it was taken, purporting to be

made by the person signing it, are true, and that such evi-

dence, statement or confession was duly taken.

81. The Court shall presume the genuineness of every Presump-^ " ' tion as to

document purporting to be the London Gazette, or the Gazette Gazettes,

of India, or the Government Gazette of any Local Govern- pei^^^pri-

ment, or of any colony, dependency, or possession of the ^^%^y^__

British Crown, or to be a newspaper or a journal, or to be ment, and

, other do-

copy of a private Act of Parliament printed by the Queen s cuments.

Printer, and of every document purporting to be a document


Presump-tion as to

documentadmissible

in Englandwithoutproofofseal or

signature.

Presump-tion as to

maps or

plans

made byauthority

of Govern-ment.

Presump-tion as to

collections

of laws andreports of

decisions.

Presump-tion as to

powers-of-

attomey.

Presump-tion as to

certified

copies offoreign

judicial

records.

directed by any law to be kept by any person, if such docu-

ment is kept substantially in the form required by law and is

produced from proper custody.

82. When any document is produced before any Court,

purporting to be a document which, by the law in force for

the time being in England or Ireland, would be admissible in

proof of any particular in any Court of Justice in England or

Ireland, without proof of the seal, or stamp or signature au-

thenticating it, or of the judicial or of&cial character claimed

by the person by whom it purports to be signed, the Court

shall presume that such seal, stamp or signature is genuine,

and that the person signing it held, at the time when he

signed it, the judicial or official character which he claims,

and the document shall be admissible for the same purpose

for which it would be admissible in England or Ireland.

83. The Court shall presume that maps or plans pui-porting

to be made by the authority of Government were so made,

and are accurate ; but maps or plans made for the purposes of

any cause must be proved to be accurate.

84. The Court shall presume the genuineness of every book

purporting to be printed or published under the authority of

the Government of any country, and to contain any of the

laws of that country,

and of every book purporting to contain reports of decisions

of the Courts of such country.

85. The Court shall presume that every document purport-

ing to be a power-of-attorney, and to have been executed

before, and authenticated by, a Notary Public, or any Court,

Judge, Magistrate, British Consul or Vice Consul, or repre-

sentative of Her Majesty or of the Government of India, was

so executed and authenticated.

86. The Court may presume that any document purporting

to be a certified copy of any judicial record of any country

not forming part of Her Majesty's dominions is genuine and

accurate, if the document purports to be certified in any man-

ner which is certified by any representative of Her Majesty


or of the Government of India resident in sucli country to be

the manner commonly in use in that country for the certifi-

cation of copies of judicial records.

87. The Court may presume that any book to which it may Presump-

refer for information on matters of public or general interest, books^'°

and that any published map or chart, the statements of -which °JfP^' '^^^

are relevant facts, and which is produced for its inspection,

was written and published by the person, and at the time and

place, by whom or at which it purports to have been written

or published.

88. The Court may presume that a message, forwarded Presump-

from a telegraph office to the person to whom such message teWraph

purports to be addressed, corresponds with a message delivered messages,

for transmission at the office from which the message pur-

ports to be sent ; but the Court shall not make any presump-

tion as to the person by whom such message was delivered

for transmission.

89. The Court shall presume that every document, called Presump-tion as to

for and not produced after notice to produce, was attested, due execu-

stamped and executed in the manner rec[uired by law. of docu-

'

90. Where any document, purporting or proved to be thirty ""^"'^ not

years old, is produced from any custody which the Court in Presump-

the particular case considers proper, the Court may presume documents

that the signature and every other part of such document, '^""ty years

which purports to be in the handwriting of any particular

person, is in that person's handwriting, and, in the case of a

document executed or attested, that it was duly executed and

attested by the persons by whom it purports to be executed

and attested.

Explanation.—Documents are said to be in proper custody

if they are in the place in which, and under the care of the

person with whom they would naturally be; but no cus-

tody is improper if it is proved to have had a legitimate origin,

or if the circumstances of the particular case are such as to

render such an origin probable.

This explanation applies also to section eighty-one.


lUmiSbraiions.

(a) A has been in possession of landed property for a long time.

He produces from his custody deeds relating to the land showing his

title to it. The custody is proper.

(6.) A produces deeds relating to landed property of which he is the

mortgagee. The mortgagor is in possession. The custody is proper.

(c.) A, a connection of B, produces deeds relating to lands in B's

possession, which were deposited with him by B for safe custody.

The custody is proper.

Chapter VI.

—

Of the Exclusion of deal by documentary

Evidence.

Evidence 91. When the terms of a contract, or of a grant, or of anyof terms of , . .

contracts. Other disposition of property, have been reduced to the form

^hefdi^- °^ ^ document, and in all cases in which any matter is required

positions of by law to be reduced to the form of a document, no evidenceproperty "

reduced to shaU be given in proof of the terms of such contract, grant or

document, other disposition of property, or of such matter, except the

document itself, or secondary evidence of its contents in cases

in which secondary evidence is admissible under the provi-

sions hereinbefore contained.

Exception 1.—When a public officer is required by law to

be appointed in writing, and when it is shown that any par-

ticular person has acted as such officer, the writing by which

he is appointed need notb^^vjd^^^^ ^ ^,^^ j^^^Exception 2.—Wills -wTiAef-tbe-Indiaa Succession Act may

be proved by the probate.

Explanation 1.—This section applies equally to cases in

which the contracts, grants or dispositions of property referred

to are contained in one document, and to cases in which

they are contained in more documents than one.

Explanation 2.—Where there are more originals than one,

one original only need be proved.

Explanation 3.—The statement, in any document whatever,

of a fact other than the facts referred to in this section, shall

not preclude the admission of oral evidence as to the same

fact.


lUnisbraiions,

(as.) If a contract be contained in several letters, all the letters in

which it is contained must be proved.

(6.) If a contract is contained in a bill of exchange, the bUl of ex-

change must be proved.

(c.) If a bill of exchange is dravra in a set of three, one only need

be proved,

(d.) A contracts, in writing, with B, for the delivery of indigo

upon certain terms. The contract mentions the fact that B had paid

A the price of other indigo contracted for verbally on another occa-

sion.

Oral evidence is offered that no payment was made for the other

indigo. The evidence is admissible.

(e.) A gives B a receipt for money paid by B.

Oral evidence is offered of the payment.

The evidence is admissible.

92. When the terms of any such contract, grant or other Exclusion

disposition of property, or any matter required by law to be of oral

reduced to the form of a document, have been proved accord- agreement.

ing to the last section, no evidence of any oral agreement or

statement shall be admitted, as between the parties to any

such instrument or their representatives in interest, for the

purpose of contradicting, varying, adding to, or subtracting

from, its terms

:

Proviso. (1.)—^Any fact may be proved which would inva-

lidate any document, or w'hich would entitle any person to

any decree or order relating thereto ; such as fraud, intimida-

tion, illegality, want of due execution, want of capacity in

any contracting party, want «)f failure of consideration, or (r/

mistake in fact or law.

Proviso (2.)—The existence of any separate oral agreement

as to any matter on which a document is silent, and which is

not inconsistent with its terms, may be proved. In consider-

ing whether or not this proviso applies, the Court shall have

regard to the degree of formality of the document.

Proviso (3.)—The existence of any separate oral agreement,

constituting a condition precedent to the attaching of any

^90 The Indian Evidence Act, i^T 2.

obligation under any such contract, grant or disposition of

property, may be proved.

Proviso (4.)—The existence of any distinct subsequent oral

agreement to rescind or modify any such contract^ grant or

disposition of property, may be proved, except in cases in

which such contract, grant or disposition of property is by

law required to be in writing, or has been registered accord-

ing to the law in force for the time being as to the registra-

tion of documents.

Proviso (5.)—Any usage or custom by which incidents not

expressly mentioned in any contract are usually annexed to

contracts of that description, may be proved : Provided that

the annexing of such incident would not be repugnant to, or

inconsistent with, the express terms of the contract.

Proviso (6.)—Any fact may be proved which shows in

what manner the language of a document is related to exist-

ing facts.

nVmtraiions.

(a.) A policy of insurance is effected on goods 'in ships from

Calcutta to London.' The goods are shipped ia a particular ship

which is lost. The fact that that particular ship was orally excepted

from the policy, cannot be proved.

(6.) A agrees absolutely in writing, to pay B Es. 1,000 on the first

of March, 1873. The fact that, at the same time, an oral agreement

was made that the money should not be paid till the thirty-first

March, cannot be proved.

(c.) An estate called ' the Bampur tea estate ' is sold by a deed

which contains a map of the property sold. The fact that land not

included in the map had always been regarded as part of the estate

and was meant to pass by the deed, cannot be proved.

{d.) A enters into a written contract with B to work certain mines,

the property of B, upon certain terms. A was induced to do so by a

misrepresentation of B as to their value. This feet may be proved.

(e.) A institutes a suit against B for the specific performance of a

contract, and also prays that the contract may be reformed as to one

of its provisions, as that provision was inserted in it by mistake. Amay prove that such a mistake was made as would by law entitle him

to have the contract reformed.

The Indian Evidence Act, 1872. igi

(/.) A orders goods of B by a letter in which nothing is said as

to the time of payment, and accepts the goods on delivery. B sues

A for the price. A may show that the goods were supplied on credit

for a term still unexpired.

(gi.) A sells B a horse and verbally warranis him sound. A gives

B a paper in these words :' Bought of A a horse for Rs. 500.' B

may prove the verbal warranty.

(fe.) A hires lodgings of B, and gives B a card on which is written f—' Eooms, Ks. 200 a month.' A may prove a verbal agreement that

these terms were to include partial board.

A hires lodgings ofB foy a year, and a regularlystamped agreement, '

drawn up by an attorney, is made between them. It is silent on the

subject of board. A may not prove that board was included in the

terms verbally.

(i.) A applies to B for a debt due to A by sending a receipt for

the money. B keeps the receipt and does not send the money. In

a suit for the amount A may prove this.

(_/.) A and B make a contract in writing to take effect upon the

happening of a certain contingency. The writing is left with B who

sues A upon it. A may show the circumstances under which it was

delivered.

93. When the language used in a document is, on its face, Exclusion

• J- I'of evidence

ambiguous or defective, evidence may not be given of facts to explain

which would show its meaning or supply its defects. amb^ous

JUMstraiions.

(a.) A agrees, in writing, to sell a horse to B for 'Es. 1000, or

Rs. 1,500.'

Evidence cannot be given to show which price was to be given.

(i.) A deed contains blanks. Evidence cannot be given of facts

which would show how they were meant to be filled. I

94. When language used in a document is plain in itself. Exclusion

and when it applies accurately to existing facts, evidence against ap-

may not he given to show that it was not meant to apply to document

such facts. l^f^Illustration,

A sells to B, by deed, • my estate at Eampur containing 100

bighas.' A has an estate at Bampur containing 100 bighas. Evi-

dence may not be given of the fact tbat the estate meant to be sold

was one situated at a different place Bind of a different size.

document.

192

Evidenceas to docu-ment un-meaningin reference

to existing

facts.

Evidenceas to appli-

cation of

whicli canapply to

one only

of several

persons or

things.


95. When language used in a document is plain in itself,

but is unmeaning in reference to existing facts, evidence may-

be given to show that it was used in a peculiar sense.

IJluglraiion.

A sells to B, by deed, ' my house in Calcutta.'

A had no house in Calcutta, but it appears that he had a house at

Howrah, of which B had been in possession since the execution of

the deed.

These facts may be proved to show that the deed related to the

house at Howrah.

96. When the facts are such that the language used might

have been meant to apply to any one, and could not have

been meant to apply to more than one, of several persons or

things, evidence may be given of facts which show which of

those persons or things it was intended to apply to.

lUiadraiions.

(a.) A agrees to sell to B, for Es. 1,000, ' my white horse.' A has

two white horses. Evidence may be given of facts which show which

of them was meant.

(6.) A agrees to accompany B to Haidarabad. Evidence may be

given of facts showing whether Haidarabad in the Dekkhan or Hai-

darabad in Sindh was meant.

97. When the language used applies partly to one set of

existing facts, and partly to another set of existing facts, but

the whole of it does not apply correctly to either, evidence

may be given to show to which of the two it was meant to

apply.

TJkisbration.

A agrees to seU to B ' my land at X in the occupation of T.' Ahas land at X, but not ia the occupation of T, and he has land in the

occupation of T, but it is not at X. Evidence may be given of facts

showing which he meant to sell.

Evidence 98. Evidence may be given to show the meaning of

asto^mean-yigg^ijje or not commonly intelligible characters, of foreign,

illegible obsolete, technical, local, and provincial expressions, of abbre-chaiacters,

&c. viations and of words used in a peculiar sense.

Evidenceas to appli-

cation of

languageto one of

two sets offacts, to

neither of

which the

whole cor-

rectly ap-

plies.


IWvLsiratwn,.

A, a sculptor, agrees to sell to B 'aU my mods.' A has both models

and modelling tools. Evidence may be given to show which he

meant to sell.

99. Persons who are not parties to a document, or their Who may

representatives in interest, may give evidence of any facts dem;e^f

tending to show a contemporaneous agreement varying the ^7^^"'

terms of the document. terms of

document.

'nkisbtaiiom,.

A and B make a contract in writing that B shall sell A certain

cotton, to be paid for on delivery. At the same time they make an

oral agreement that three months' credit shall be given to A. This

conld not be shown as between A and B, but it might be shown by

C, if it affected his interests.

100. Nothing in this chapter contained shall he taken to Saving of

afifect any of the provisions of the Indian Succession Act of Indian^

(X. of 1865) as to the construction of wills. Success-^ ' sion Act

relating

to wills.

194 The Indian Evidence Act, iS/i.

Part III.

Burden of

prooC

On whomburden of

proof lies.

PEODUCTION AND EFFECT OF EVIDENCE.

Chapter VII.

—

Of the Btjeden of Proof.

101. Whoever desires any Court to give judgment as to

any legal right or liability dependent on the existence of

facts -which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any

fact, it is said that the burden of proof lies on that person.

Tdustraiwns.

(a.) A desires a Court to give judgment that B shall be punished

for a crime which A says B has committed.

A must prove that B has committed the crime.

(J) A desires a Court to give judgment that he is entitled to cer-

tain land in the possession of B, by reason of facts which he asserts,

and which B denies, to be true.

A must prove the existence of those facts.

102. The burden of proof in a suit or proceeding lies on

that person who would fail if no evidence at all were given

on either side.

IWastraiicns.

(a.) A sues B for land of which B is in possession, and which, as

A asserts, was left to A by the will of C, B's father.

If no evidence were given .on either side, B would be entitled to

retain his possession.

Therefore the burden of proof is on A.

(&.) A sues B for money due on a bond.

The execution of the bond is admitted, but B says that it was

obtained by fraud, which A denies.

If no evidence were given on either side, A would succeed, as the

bond is not disputed and the fraud is not proved.

Therefore the burden of proof is on B.


103. The burden of proof as to any particular fact lies on Burden of

that person who wishes the Court to believe in its existence, plrdcufar"

unless it is provided by any law that the proof of that fact ^^'^'

shall lie on any particular person.

IWastration.

(a.) A prosecutes B for theft, and wishes the Court to believe that

B admitted the theft to 0. A must prove the admission.

B wishes the Court to believe that, at the time in question, he was

elsewhere. He must prove it.

104. The burden of proving any fact necessary to l*®g ^j „ {

proved in order to enable any person to give evidence of any provingfact to be

other fact is on the person who wishes to give such evidence, proved to

makeIllustrations. evidence

. admissible.(a.) A wishes to prove a dying declaration by B. A must prove

B's death.

(b.) A wishes to prove, by secondary evidence, the contents of a

lost docum«it.

A must prove that the document has been lost.

105. When a person is accused of any offence, the burden ^^^^ °^

of proving the existence of circumstances bringing the case that case

within any of the General Exceptions in the Indian Penal comes

Code, or within any special exception or proviso contained in^'ceptions.

any other part of the same Code, or in any law defining the

offence, is upon him, and the Court shall presume the absence

of such circumstances.

Illustrations.

(a.) A, accused of murder, alleges that, by reason of unsoundness of

mind, he did not know the nature of the act.

The burden of proof is on A.

(6.) A, accused ofmurder, alleges that, by grave and sudden pro-

vocation, he was deprived of the power of self-control.

The burden of proof is on A.

(c.) Section three hundred and twenty-five of the Indian Penal

Code provides, that whoever, except in the case provided for by sec-

tion three hundred and thirty-five, voluntarily causes grievous hurt,

shall be subject to certain punishments.

A is charged with voluntarily causing grievous hurt under section

three hundred and twenty-five.


The burden of proving the circumstances, bringing the case under

section three hundred and thirty-five, lies on A.

Burden of 106. "When any fact is especially within the knowledge of

fact especi- ^ny person, the burden of proving that fact is upon him.ally within

I'now- Ilhish-ations.

(a.) When a person does an act with some intention other than

that which the character and circumstances of the act suggest, the

burden of proving that intention is upon him.

(6.) A is charged with travelling on a railway without a ticket.

The burden of proving that he had a ticket is on him.

Burden of 107. When the question is whether a man is alive or dead,

deaa"of ^T^^ it is shown that he was alive within thirty years,the burden

known°^ proving that he is dead is on the person who af&rms it.

have been 108. When the question is whether a man is alive or dead,

in thirty and it is proved that he has not been heard of for seven

B^^^" fy®^^^ ^y t^ose who would naturally have heard of him if he

proving had been alive, the burden of proving that he is alive is onthat person , i i ju -^

isaiivewho ^he person who amrms it.

been h d^^^' ^^^^ *^^ question is whether persons are partners,

offor seven landlord and tenant, or principal and agent, and it has been

Burden of^hown that they have been acting as such, the burden of

proof as to proving that they do not stand, or have ceased to stand, torelation-

ship in the each otherm those relationships respectively, is on the personcases of

partners,who affirms it.

landlord HQ. When the question is whether any person is ownerand tenant,

_ _ ^•' ^

principal of anything of which he is shown to be in possession, the

Burden ofl^i"^*i6n of proving that he is not the owner is on the person

proof as to -vybo affirms that he is not the owner,ownership.

Proof of 111- Where there is a question as to the good faith of a

good faith transaction between parties, one of whom stands to the other

tions where in a position of active confidence, the burden of proving the

is in rela- good faith of the transaction is on the party who is in a posi-

acti've con *^°^ °^ active confidence. •

fidence. Illustrations.

(a.) The good faith of a sale by a client to an attorney is in

question in a suit brought by a client. The burden of proving the

good faith of the transaction is on the attorney.

The Indian Evidence Act, \%'] 2. 197

(5.) The good faith of a sale by a son just come of age to a father

is in question in a suit brought by the son. The burden of proving

the good faith of the transaction is on the father.

112. The fact that any person was born during the con- Birth dur-

tinuance of a valid marriage between his mother and any rw^co'n-

man, or withia two hundred and eighty days after its dissolu- ^^l^^'^e

tion, the mother remaining unmarried, shall be conclusive legitimacy.

proof that he is the legitimate son of that man, unless it can

be shown that the parties had no access to each other at any

time when he could have been begotten.

113. A notification in the Gazette of India that any portion Proof of

of British territory has been ceded to any Native State,territory.

Prince or Euler, shall be conclusive proof that a valid cession

of such territory took place at the date mentioned in such

notification.

114. The Cour* may presume the existence of any fact Court may

which it thinks likely to have happened, regard being had to existence

the common course of natural events, human conduct and '^^^^^'"

public and private business in their relation to the facts of

the particular case.

IlVastrations.

The Court may presume

—

(a.) That a man who is in possession of stolen goods soon after the

theft is either the thief, or has received the goods knowing them to be

stolen, unless he can account for his possession

;

(J.) That an accomplice is unworthy of credit, unless he is corrobo-

rated in material particulars

;

(c.) That a bill of exchange, accepted or endorsed, was siccepted

or endorsed for good consideration

;

id.) That a thing or state of things which has been shown to be in

existence within a period shorter than that within which such things

or states of things usually cease to exist, is still in existence

;

(e.) That judicial and official acts have been regularly performed

;

(/.) That the common course of business has been followed in

particular cases

;

{g.) That evidence which could be and is not produced would, if

produced, be unfavourable to the person who withholds it

;

{Ji.) That if a man refuses to answer a question which he is

^9^ The Indian Evidence Act, 1872.

not compelled to answer by law, the answer, if given, would be un-

favourable to him

;

(i.) That when a document creating an obligation is in the hands

of the obligor, the obligation has been discharged.

But the Court shall also have regard to such facts as the following,

in considering whether such maxims do or do* not apply to the par-

ticular case before it

:

As to illustration (a)—A shop-keeper has in his tiU a marked

rupee soon after it was stolen, and cannot account for its possession

specifically, but is continually receiving rupees in the course of his

business;:

As to illustration (6)—A, a person of the highest character, is tried

for causing a man's death by an act of negligence in arranging cer-

tain machinery. B, a person of equally good character, who also

took part in the arrangement, describes precisely what was done, and

admits and explains the common carelessness of A and himself:

As to illustration (6)—A crime is committed by several persons.

A, B and C, three of the criminals, are captured on the spot and kept

apart from each other. Bach gives an account of the crime impli-

cating D, and the accounts corroborate each other in such a manner

as to render previous concert highly improbable

:

As to illustration (c)—A, the drawer of a biU of exchange, was a

man of business. B, the acceptor, was a young and ignorant person,

completely under A's influence

:

As to illustration {&)—It is proved that a river ran in a certain

course five years ago, but it is known that there have been floods

since that time which might change its course

:

As to illustration (e)—A judicial act, the regularity of which is in

question, was performed under exceptional circumstances :

As to illustration (f)—The question is, whether a letter was received.

It is shown to have been posted, but the usual course of the post was

interrupted by disturbances

:

As to illustration (g)—A man refuses to produce a document which'

would bear on a contract of small importance on which he is sued,

but which might also injure the feelings and reputation of his family:

As to illustration (fe)—A man refuses to answer a question which

he is not compelled by law to answer, but the answer to it might

cause loss to him in matters unconnected with the matters in relation

to which he is asked

:

As to illustration {%)—A bond is in possession of the obligor, but

the circumstances of the case are such that he may have stolen it.


Chapter VIII.^Estoppel.

115. When one person has, by his declaration, act or Estoppel.

omission, intentionally caused or permitted another person

to believe a tiling to be true and to act upon such a belief,

neither he nor his representative shall be allowed, in any suit

or proceeding between himself and such person or his repre-

sentative, to deny the truth of that thing.

IJhiijii/ration.

A intentionally and falsely leads B to believe that certain land

belongs to A, and thereby indnces B to buy and pay for it.

The land afterwards becomes the property of A, andA seeks to set

aside the sale on the ground that, at the time of the sale, he had no

title. He must not be allowed to prove his want of title.

116. Notenant.of immoveable property, or person claiming Estoppel

through such tenant, shall, during the continuance of the ° '^"^'"'

tenancy, be permitted to deny that the landlord of such

tenant had, at the beginning of the tenancy, a title to such

immoveable property; and no person who came upon any

immoveable property by the license of the person in the pos- ^\° ^session thereof, shall be permitted to deny that such person person in

, . 1 IT possession.

had a title to such possession at the time when such license

was given.

117. No acceptor of a bUl of exchange shall be permitted Estoppel' ox of acceptor

to deny that the drawer had authority to draw such bill or to of bill of

endorse it ; nor shall any bailee or licensee be permitted to bailee, or

deny that his bailor or licensor had, at the time when the^"^™^^^-

bailment or license commenced, authority to make such bail-

ment or grant such license.

Explarmikm (1.)—The acceptor of a biU of exchange may

deny that the biU was really drawn by the person by whomit purports to have been drawn.

Explanation (2.)—If a bailee delivers the goods bailed to

a person other than the bailor, he may prove that such person

had a right to them as against the bailor.


/

Who maytestify.

Dumb wit-

nesses.

Parties to

civil suit,

and their

wives or

hnsbands.

Husbandor wife ofperson un-der crimi-

nal trial.

Judges andMagis-trates.

Chapter IX.

—

Of Witnesses.

118. All persons shall be competent to testify unless the

Court considers that thej'^ are prevented from understanding

the questions put to them, or from giving rational answers to

those questions, by tender years, extreme old age, disease,

whether of body or mind, or any other cause of the same

kind.

Explanation.—A lunatic is not incompetent to testify,

unless he is prevented by his lunacy from understanding the

questions put to him and giving rational answers to them. •

119. A witness who is unable to speak may give his evi-

dence in any other manner in which he can make it intel-

ligible, as by writing or by signs ; but such writing must be

written and the signs made in open Court. Evidence so

given shall be deemed to be oral evidence.

120. In all civil proceedings the parties to the suit, and

the husband or wife of any party to the suit, shall be com-

petent witnesses. In criminal proceedings against any per-

son, the husband or wife of such person, respectively, shall

be a competent witness.

121. No Judge or Magistrate shall, except upon the special

order of some Court to which he is subordinate, be compelled

to answer any questions as to his own conduct in Court as

such Judge or Magistrate, or as to anything which came to

his knowledge in Court as such Jiidge or Magistrate ; but he

may be examined as to other matters which occurred in his

presence while he was so acting.

TU.uiiraiicm.fi..

(a.) A, on his trial before the Court of Session, says that a depo-

sition was improperly taken by B, the Magistrate. B cannot be

compelled to answer questions as to this, except upon the special

order of a superior Court.

(6.) A is accused before the Court of Session of having given false

evidence before B, a Magistrate. B cannot be asked what A said,

except upon the special order of the superior Court.

(c.) A is accused before the Court of Session of attempting to

The Indian Evidence Ac^, i8y2. 201

murder a Police ofBcer whilst on his trial before B, a Sessions Judge.

B may be examined as to what occurred.

122. No person who is or has been married, shall be com- communi-

peUed to disclose any communication made to him during ^u^ng

marriage by any person to whom he is or has been married ;mai>iage.

nor shaU he be permitted to disclose any such communica-

tion, unless the person who made it, or his representative in

interest, consents, except in suits between married persons,

or proceedings in which one married person is prosecuted for

any crime committed against the other.

123. No one shall be permitted to give any evidence Evidence

derived from unpublished official records relating to anyof state?'"

affairs of State, except with the permission of the ofBcer at

the head of the department concerned, who shall give or

withhold such permission as he thinks fit,

124. No public officer shall be compelled to disclose com- official

munications made to him in official confidence, when he con- cations,

siders that the public interests would suffer by the disclosure.

125. No Magistrate or Police officer shall be compelled to informa-

say whence he got any information as to the commission of c°^mis-°

any offence. s'°" °^•' offences.

126. No barrister, attorney, pleader or vakil, shall at any profes-

time be permitted, unless with his client's express consent, to^"n^J.^?™

disclose any communication made to him in the course and tion.

for the purpose of his employment as such barrister, pleader,

attorney or vakil, by or on behalf of his client, or to state the

contents or condition of any document with which he has

become acquainted in the course and for the purpose of his

professional employment, or to disclose any advice given by

him to his client in the course and for the purpose of such

employment :

Provided that nothing in this section shall protect from

disclosure

—

• ,Q.) Apy sich communication made in furtherance of any

criminal purpose ;

'^(2.) Any fact observed by any barrister, pleader, attorney,


or vakfl, in the course of his employment as such, showing

that any crime or fraud has heen committed since the com-

mencement of his employment.

It is immaterial whether the attention of such barrister,

attorney or vakil was or was not directed to such fact by or

on behalf of his client.

Explanation.—The obligation stated in this section con-

tinues after the employment has ceased.

IllMstrations.

(fls.) A, a client, says to B, an attorney—' I have committed for-

gery, and I wish you to defend me.'

As the defence of a man known to be guilty is not a criminal

purpose, this communication is protected from disclosure.

(6.) A, a client, says to B, an attorney—' I wish to obtain pos-

session of property by the use of a forged deed on which I request

you to sue.'

This communication, being made in furtherance of a criminal

purpose, is not protected from disclosure.

(p.) A, being charged with embezzlement, retains B, an attorney,

to defend him. In the course of the proceedings, B observes that

an entry has been made in A's account-book, charging A with the

sum said to have been embezzled, which entry was not in the book,

at the commencement of his employment.

This being a fact observed by B in the course of his employment

showing that a fraud has been committed since the commencement

of the proceedings, it is not protected from disclosure.

Sectioni26 127. The provisions of section one hundred and twenty-to apply to

gj^ shall apply to interpreters, and the clerks or servants of

ters, &c. barristers, pleaders, attorneys and vakils.

Privilege 128. If any party to a suit gives evidence therein at his

by'vohn-'^own instance or otherwise, he shall not be deemed to have

teering consented thereby to such disclosure as is mentioned in sec-evidence.

tion one hundred and twenty-six ; and if any party to a suit

or proceeding calls any such barrister, attorney, or vakil as a

witness, he shall be deemed to have consented to such dis-

closure only if he questions such barrister, attorney or vakfl.

on matters which, but for such question, he would not be

at liberty to disclose.

The Indian Evidence Acf, i8y2. 203

129. No one shall be compelled to disclose to the Court ConSden-

any confidential communication which has taken place be- munk™tween him and his legal professional adviser, unless he offers

J'°°j

™"^

himself as a witness, in which case he may be compelled to advisers.

disclose any such communications as may appear to the

Court necessary to be known in order to explain any evidence

which he has given, but no others.

130. Ho witness who is not a party to a suit shall be com- Production

pelled to produce his title-deeds to any property, or any deeds'^of

document in virtue of which he holds any property as«''?"essnot

J -r r J a party.

pledgee or mortgagee, or any document the production of

which might tend to criminate him, unless he has agreed in

writing to produce them with the person seeking the produc-

tion of such deeds or some person through whom he claims.

131. No one shall be compelled to produce documents in Production

his possession which any other person would be entitled to ments

refuse to produce if they were in his possession, unless such ^therpe"

last mentioned person consents to their production. son, havingpossession,

132. A witness shall not be excused from answering any could re-

question as to any matter relevant to the matter in issue in produce.

any suit or in any civil or criminal proceeding, upon the Witness

ground that the answer to such question will criminate, or cused from

may tend directly or indirectly to criminate, such witness, or on ground

that it will expose, or tend directly or indirectly to expose,*g'j.^i']i

such witness to a penalty or forfeiture of any kiud

:

criminate.

Provided that no such answer, which a witness shall be Proviso.

compelled to give, shall subject him to any arrest or prosecu-

tion, or be proved against him in any criminal proceeding,

except a prosecution for giving false evidence by such

answer.

133. An accomplice shall be a competent witness against Accom-

an accused person ; and a conviction is not illegal merely ^"^^'

because it proceeds upon the uncorroborated testimony of an

accomplice.

134. No particular number of witnesses shall in any case Number of

„ , witnesses

be required for the proof of any fact.


Chaptee X.

—

Of the Examination of Witnesses.

Order of ^35 jij^gorder in whicli witnesses are produced and

production ^

and exami- examined shall be regulated by the law and practice for the

witnesses, time being relating to civil and criminal procedure respec-

tively, and, in the absence of any such law, by the discretion

of the Court.

Judge to 136_ When either party proposes to give evidence of any

to admissi- fact, the Judge may ask the party proposing to give the e'vi-

evidence. dencB in what manner the alleged fact, if proved, would be

relevant ; and the Judge shall admit the evidence if he thinks

that the fact, if proved, would be relevant, and not otherwise.

•. If the fact proposed to be proved is one of which evidence

is admissible only upon proof of some other fact, such last-

mentioned fact must be proved before evidence is given of the

fact first mentioned, unless the party undertakes to give

proof of such fact, and the Court is satisfied with such under-

taking.

If the relevancy of one alleged fact depends upon another

alleged fact being first proved, the Judge may, in his discre-

tion, either permit evidence of the first fact to be given before

the second fact is proved, or require evidence to be given of

the second fact before evidence is given of the first fact.

Hhish-ations.

(a.) It is proposed to prove a statement about a relevant fact by

a person alleged to be dead, which, statement is relevant under

section thirty-two.

The fact that the person is dead must be proved by the person

proposing to prove the statement, before evidence is given of the

statement.

(6.) It is proposed to prove, by a copy, the contents ofa document

said to be lost.

The fact that the original is lost must be proved by the person

proposing to produce the copy, before the copy is produced.

(c.) A is accused of receiving stolen property knowing it to have

been stolen.

It is proposed to prove that he denied the possession of the

property.


The relevancy of the denial depends on the identity of the pro-

perty. The Court may in its discretion, either require the property

to be identified before the denial of the possession is proved, or

permit the denial of the possession to be proved before the property

is identified.

(d.) It is proposed to prove a fact (A) which is said to have been

the cause or efiect of a fact in issue. There are several interme-

diate facts (B, and D) which must be shown to exist before the

fact (A) can be regarded as the cause or effect of the fact in issue.

The Court may either permit A to be proved before B, or Dis proved, or may require proof of B, C and D before permitting

proof of A.

137. The examination of a witness by the party who calls Examlna-

him shall be called his examination-in-chief. chief.

The examination of a witness by the adverse party shall be Cross'-ex-

called his cross-examination."""^ '°"'

The examination of a witness, subsequent to the cross- Re-exami-

examination by the party who called him, shall be called his°^''°°-

re-examination.

138. Witnesses shall be first examined-in-chief, then (if Order of

the adverse party so desires) cross-examined, then (if the tions.

party so desires) be re-examined.

The examination and cross-examination must relate to amination.

relevant facts, but the cross-examination need not be con-

fined to the facts to which the witness testified on his ex-

amination-in-chief.

The re-examination shall be directed to the explanation of

matters referred to in cross-examination ; and if new matter

is, by permission of the Court, introduced in re-examination,

the adverse party may further cross-examine upon that

matter.

139. A person summoned to produce a document does not Cross-ex-

become a witness by the mere fact that he produced it, and of person

cannot be cross-examined unless and until he is called as a '^^'^j'^ '°

produce a

witness. document.

140. Witnesses to character may be cross-examined and Witnesses^ to charac-

re-examined. ter.

Direction

of re-ex-

206 The hidian Evidence Act, 1872.

Leadingquestions.

When they

mustnotbeasked.

When they

may beasked.

Evidenceas to

matters in

writing.

141. Any question suggesting the answer which the person

putting it wishes or expects to receive, is called a leading

question.

142. Leading questions must not, if objected to by the

adverse party, be asked in an examination-in-chief, or in a

re-examination, except with the permission of the Comt.

The Court shall permit leading questions as to matters

which are introductory or undisputed, or which have, in its

opinion, been already sufficiently proved.

143. Leading questions may be asked in cross-examina-

tion.

144. Any witness may be asked, whUst under examination,

whether any contract, grant or other disposition of property,

as to which he is giving evidence, was not contained in a

document, and if he says that it was, or if he is about to make

any statement as to the contents of any document, which, in

the opinion of the Court, ought to be produced, the adverse

party may object to such evidence being given until such

document is produced, or until facts have been proved which

entitle the party who called the witness to give secondary

evidence of it.

Explanation.—^A witness may give oral evidence of state-

ments made by other persons about the contents of docu-

ments if such statements are in themselves relevant facts.

niuatration.

The question is, whether A assaulted B,

deposes that he heard A say to D— ' B wrote a letter accusing meof theft, and I will be revenged on him.' This statement is relevant,

as showing A's motive for the assault, and evidence may be given of

it, though no other evidence is given about the letter.

Cross-ex-

aminationas to

previous

statements

in writing.

145. A witness may be cross-examined as to previous

statements made by him in writing, or reduced into writing,

and relevant to matters in question, without such writing

being shown to him, or being proved ; but if it is intended

to contradict him by the writing, his intention must, before

cross-ex-

amination.

The Indian Evidence Act, \%'] 2. 207

the writing can be proved, be called to those'parts of it wbicli

are to be used for the purpose of contradicting him.

146. When a witness is cross-examined, he may, in Questions

addition to the questions hereinbefore referred to, be asked

any questions which tend

(1) to test his veracity

;

(2) to discover who he is, and what is his position in life ; or

(3) to shake his credit, by injuring his character,

although the answer to such questions might tend directly

or indirectly to criminate him, or might expose or tend

directly or indirectly to expose him to a penalty or for-

feiture.

147. If any such question relates to a matter relevant to

the suit or proceeding, the provisions of section one hundred When wit-

and thirty-two shall apply thereto. compelled

148. If any such question relates to a matter not relevant '° ^"^^^''•

to the suit or proceeding, except in so far as it affects the Qfsaxi. to

credit of the witness by injuring his character, the Court "^^'"^^^gj.

shall decide whether or not the witness shall be compelled to tion shall

bfi asked.

answer it, and may, if it thinks fit, warn the witness that he and when

is not obliged to answer it. In exercising its discretion, the ^^elled

Court shall have regard to the following considerations :— to answer.

(1.) Such questions are proper if they are of such a nature

that the truth of the imputation conveyed by them would

seriously affect the opinion of the Court as to the credibility

of the witness on the matter to which he testifies

;

(2.) Such questions are improper if the imputation which

they convey relates to matters so remote in time, or of such a

character, that the truth of the imputation would not affect,

or would affect ia a slight degree, the opinion of the Court as

to the credibility of the witness on the matter to which he

testifies

;

(3.) Such questions are improper if there is a great dis-

proportion between the importance of the imputation made

agaiast the witness's character and the importance of his

evidence;

2o8 The Indian Evidence Act, 1872.

(4.) The Court may, if it sees fit, draw, from the witness's

refusal to answer, the inference that the answer if given would

be unfavourable.

Question 149. No such question as is referred to in section one

asked hundred and forty-eight ought to be asked, unless the person

reasonableasking it has reasonable grounds for thinking that the impu-

grounds. tation wMch it conveys is weU-founded.

lllustraticma.

(a.) A barrister is instructed by an attorney or vakil that an im-

portant witness is a dakait. This is reasonable ground for asking

the witness whether he is a dakait.

(6.) A pleader is informed by a person in Court that an important

witness is a dakait. The informant, on being questioned by the

pleader, gives satisfactory reasons for his statement. This is a

reasonable ground for asking the witness whether he is a dakait.

(c.) A witness, of whom nothing whatever is known, is asked at

random whether he is a dakait. There are here no reasonable

*» grounds for the question.

(d.) A witness, of whom nothing whatever is known, being ques-

tioned as to his mode of Hfe and means of living, gives unsatisfactory

answers. This may be a reasonable ground for asking him if he is a

dakait.

Procedure 150. If the Court is of opinion that any such question was

case of asked without reasonable grounds, it may, if it was asked byquestion ^^^ barrister, pleader, vakil or attorney, report the circum-

asked stances of the case to the High Court or other authority to

reasonable wMch such barrister, pleader, vakil, or attorney is subject ingrounds. ,

. n •i-

•^ the exercise ot his proiession.

Indecent \^\. The Court may forbid any questions or inquiries

^"'^, , which it regards as indecent or scandalous, although such

scandalous ° °

questions, questions or inquiries may have some bearing on the ques-

tions before the Court, unless they relate to facts in issue, or

to matters necessary to be known in order to determine

whether or not the facts in issue existed,

o stions'•^^' -"-^^ Court shall forbid any question which appears to

intended to it to be intended to insult or annoy, or which, though proper

annoy. in itself, appears to the Court needlessly offensive in form.


153. When a witness has been asked and has answered Exclusion

any question which is relevant to the inquiry only in so far to contra-

as it tends to shake his credit by injuring his character, no^n'swersto

evidence shall be given to contradict him ; but if he answers questions° '

testing

falsely, he may afterwards be charged with giving false veracity.

evidence.

Exception 1.—If a witness is asked whether he has been

previously convicted of any crime and denies it, evidence

may be given of his previous conviction.

Exception 2.—If a witness is asked any question tending

to impeach his impartiality, and answers it by denying the

facts suggested, he may be contradicted.

Illustration.

(a.) A claim against an underwriter is resisted on the ground of

fraud.

The claimant is asked whether, in a former transaction, he had not

made a fraudulent claim. He denies it.

Evidence is offered to show that he did make such a claim.

The evidence is inadmissible.

(6.) A witness is asked whether he was not dismissed from a situa-

tion for dishonesty. He denies it.

Evidence is offered to show that he was dismissed for dishonesty.

The evidence is not admissible.

(c.) A affirms that on a certain day he saw B at Lahore.

A is asked whether he himself was not on that day at Calcutta. Hedenies it.

Evidence is offered to show that A was on that day at Cal-

cutta.

The evidence is admissible, not as contradicting A on a fact

which affects his credit, but as contradicting the alleged fact that

B was seen on the day in question in Lahore.

In each of these cases the witness might, if his denial were false,

be charged with giving false evidence.

{d.) A is asked whether his family has not had a blood feud

with the family of B against whom he gives evidence.

He denies it. He may be contradicted on the ground that the

question tends to impeach his impartiality.

154. The Court may, in its discretion, permit the person Questions

by party to

2IO The Indian Evidence Act, 1872.

his ownwitness.

Impeach-ing credit

of witness.

'V

who calls a witness to put any questions to him which might

be put in cross-examination by the adverse party.

155. The credit of a witness may be impeached in the

following ways by the adverse party, or, with the consent of

the Court, by the party who calls him :

—

(1.) By the evidence of persons who testify that they,

from their knowledge of the witness, believe him to be un-

worthy of credit

;

.(2.) By proof that the witness has been bribed, or has

nadtne offer of a bribe, or has received any other corrupt

inducement to give his evidence

;

(3.) By proof of former statements inconsistent with any

part of his evidence which is liable to be contradicted

;

(4.) "When a man is prosecuted for rape or an attempt to

ravish, it may be shown that the prosecutrix was of generally

immoral character.

Explanation.—A witness declaring another witness to be

unworthy of credit may not, upon his examination-in-chief

give reasons for his belief, but he may be asked his reasons in

cross-examination, and the answers which he gives cannot be

contradicted, though, if they are false, he may afterwards be

charged with giving false evideiice.

Questions

tending to

corrobo-

rate

Illustrations.

(a). A sues B for the price of goods sold and delivered to B.

C says that lie delivered the goods to B.

Evidence is offered to show that, on a previous occasion, he said

that he had not delivered the goods to B.


(6.) A is indicted for the murder of B.

says that B, when dying, declared that A had given[B the wound

of which he died.

Evidence is offered to show that on a previous occasion, C said

that the wound was not given by A or in his presence.^


156. When a witness whom it is intended to corroborate

gives evidence of any relevant fact, he may be questioned as


to any otlier circumstances which he observed at or near to evidence of

the time or place at which such relevant fact occurred, if the fact™d-

Court is of opinion that such circumstances, if proved, would ™'ssible.

corrohorate the testimony of the witness as to the relevant

fact which he testifies.

niustratimi.

A, an accomplice, gives an account of a robbery in which betook

part. He describes various incidents unconnected with the robbery

which occurred on his way to and from the place where it was

committed.

Independent evidence of these facts may be given in order to

corroborate his evidence as to the robbery itself.

157. In order to corroborate the testimony of a witness, Former

any former statement made by such witness relating to the of witness

same fact, at or about the time when the fact took place, or "oved^tg

before any authority legally competent to investigate the corrobo-

fact, may be proved. testimony

158. Whenever any statement, relevant under section f^ct,

^^^^

thirty-two or thirty-three, is proved, all matters may be What, . , . , T , . matters

proved, either m order to contradict or to corroborate it, or may be

in order to impeach or confirm the credit of the person by comiection

whom it was made, which might have been proved if that ^"^

person had been called as a witness, and had denied upon statement

cross-examination the truth of the matter suggested. under

159. A witness may, while under examination, refresh his ^.l*^''""•" ' 32 or 33.

memory by referring to any writing made by himself at the Refreshing

time of the transaction concerning which he is questioned,'"^°^°'7-

or so soon afterwards that the Court considers it likely that

the transaction was at that time fresh in his memory.

The witness may also refer to any such writing made by

any other person, and read by the witness within the time

aforesaid, if when he read it he knew it to be correct.

Whenever a witness may refresh his memory by reference When wit-

. ."''ss may

to any document, he may, with the permission of the Court, use copy

refer to a copy of such document, provided the Court be ment'to

satisfied that there is sufficient reason for the non-production ""^f"^^*

^ memory,

of the original.

2 1

2


An expert may refresh his memory by reference to pro-

fessional treatises.

Testimony 160. A witness may also testify to facts mentioned in anyto facts

' ''

. 1 J J /I

stated in such document as is mentioned m section one hunarea ana

meXned fifty-nine, although he has no specific recollection of the

in sectionf^pjjg themselves, if he is sure that the facts were correctly

159.'

recorded in the document.

Illusiratwm.

A book-keeper may testify to facts recorded by him in books

regularly kept in tbe course of business, if he knows that the books

were correctly kept, although he has forgotten the particular trans-

actions entered.

Right ofig]^ ^jjy •v^rritinCT referred to under the provisions of the

adverse ; o 4-

partyasto two last preceding sections must be produced and shown to

used to the adverse party if he requires it; such party may, if he

memory, pl^ases, cross-examine the witness thereupon.

Production 162. A witness summoned to produce a document shall, if

ment°s!"' ^^ ^^ iu his posscssion or power, bring it to Court, notwith-

standing any objection which there may be to its production

or to its admissibility. The validity of any such objection

shall be decided on by the Court.

. The Court, if it sees fit, may inspect the document, unless

it refers to matters of State, or take other evidence to enable

it to determine on its admissibility.

Transla- jf for guch a purposc it is necessary to cause any document

docu- to be translated, the Court may, if it thinks fit, direct the

translator to keep the contents secret, unless the document

is to be given in evidence : and if the interpreter disobeys

such direction, he shall be held to have committed an offence

under section one hundred and sixty-six of the Indian Penal

Code.

Giving, as 163. When a party calls for a document which he hasEvidence

of docu-' given the other party notice to produce, and such document

™lied for^^ produced and inspected by the party calling for its pro-

The Indian Evidence Act,' xZ"]!. 213

duction, he is bound to give it as evidence if the party pro- and pro-

ducing it requires him to do so. nXe.°"164. When a party refuses to produce a document which Using, as

evidencehe has had notice to produce, he cannot afterwards use the of docu-'

document as evidence without the consent of the other party dm;tion™f

or the order of the Court. which wasrefused on

_„ .notice.

Ilmstration.

A sues B on an agreement and gives B notice to produce it. At

the trial, A calls for the document and B refuses to produce it. Agives secondary evidence of its contents. B seeks to produce the

document itself to contradict the secondary evidence given by A, or

in order to show that the agreement is not stamped. He cannot do so.

165. The Judge may, in order to discover or to obtain Judge's

proper proof of relevant facts, ask any question he pleases, in put ques-

any form, at any time, of any M'itness, or of the parties, abouto™ej. wo-

any fact, relevant or irrelevant, and may order the produc- duction.

tion of any document or thing, and neither the parties nor

their agents shall be entitled to make any objection to any

such question or order, nor, without the leave of the Court,

to cross-examine any witness upon any answer given in

reply to any such question

:

Provided that the judgment must be based upon facts

declared by this Act to be relevant, and duly proved

:

Pr&vided also that this section shall not authorize any

Judge to compel any witness to answer any question, or to

produce any document which such witness would be entitled

to refuse to answer or produce under sections one hundred

and twenty-one to one hundred and thirty-one both inclusive,

if the question were asked or the document were called for

by the adverse party ; nor shall the Judge ask any question

which it would be improper for any other person to ask

under sections one hundred and forty-eight or one hundred

and forty-nine ; nor shall he dispense with primary evidence

of any document, except in the cases hereinbefore excepted.

166. In cases tried by jury or with assessors, the jury or Power of

jury or

214 The Indian Evidence Act, \Z']2.

assessoreto assessors may put any questions to the witnesses, througli or

tions^"^^' ^y leave of the Judge, which the Judge himself might put and

which he considers proper.

Chapter XL

—

Of Improper Admission and Eejectiox of

Evidence.

No new ^^'^- '^'^ improper admission or rejection of evidence shaUtnalfor

jjq^ ^g ground of itsclf for a new trial or reversal of anyimproper °admission decision in any ease, if it shall appear to the Court before

ofevi-' which such objection is raised that, independently of the

rtence. evidence objected to and admttied, there was sufBcient

evidence to justify the decision, or that, if the rejected

evidence had been received, it ought not to have varied the

decision.


SCHEDULE.

Enactments repealed.

[See section 2.]

Stat. 26 Geo.

cap. 57.

III.

Stat. 14 and 15

Vic, cap. 99.

ActXVof 1852.

Act XIX of 1853.

Act II of 1855

Act XXV of 1861

Act I of 1868.

For the further regulation of the

trial of persons accused of certain

offences committed in the KastIndies; for repealing so much of

an Act, made in the twenty-fourthyear of the reign of his presentMajesty (intituled 'An Act for the

better regulation and managementof the affairs of the East IndiaCompany, and of the British pos-

sessions in India, and for estahlish-

ing n, court of judicature for the

more speedy and effectual trial of

persons accused of offences com-mitted in the East Indies') as re-

quires the servants of the EastIndia Company to deliver inven-tories of their estates and effects

;

for rendering the laws more effec-

tual against persons unlawfullyresorting to the East Indies ; andfor the more easy proof, in certain

cases, of deeds and writings exe-

cuted in Great Britain or India.

To amend the Law of Evidence

To amend the Law of Evidence

To amend the Law of Evidence in

the Civil Courts of the East India

Company in the Bengal Presidency.

For the further improvement of the

Law of Evidence.

For simplifying the Procedure of the

Courts of Criminal Judicature notestablished by Koyal Charter.

The General Clauses' Act, 1868

Section thirty-eight

so far as it relates

to Courts of justice

in the East Indies.

Section eleven andso much of section

nineteen as relates

to British India.

So much as has not

been heretofore

repealed.

Sectito nineteen.

So much as has not

been heretofore

re

Section two hundredand thirty-seven.

Sections

eight.

seven and

INDEX TO THE INDIAN EYIDENCE ACT L OF 1872.

Sched. andSohed. andSched. andSched. andSched. andSched. andSohed. andSched. and

Exclusion of Evidence."

SECT.

98

117

117

67

67133

133

341

1

1

1

10

78

5781

222

22

Abbreviations, meaning of, evidence admissible to showAcceptor of Bill of Exchange estopped from denying anthority of drawer . .

.

may deny drawingAccession of Sovereign of TJnited Kingdom, Court must take judicial notice ofAccession to office, &c., of Indian public officer, when Court must take

judicial notice of

Accomplice, competent witness against person accusedconviction upon evidence of, only, not illegal

Account, books of, entries in, when relevantAct, application of

commencement of

extent of ...

short title ofAct of conspirator, how far a relevant fact

See "Relevancy of statement."Acts, how proved

of Parliament, of what Acts Court must take judicial notice

private, copies of, presumption as to genuinenessrepealed

26 Geo, III., c. 57, s. 38, part of

14 and 15 Vic, c. 99, s. 11, and part of s. 19Xy. of 1852XIX. of 1863, s. 1911. of 1855XXV. of 1861, sec. 237 ...

I. of 1868, ss. 7 and 8 ...

Adding to terms of written contract, &c. See

Admissibility of communications made during marriage 122

document produced by witness 162

evidence of affairs of State 123

Judge to decide as to 136

questions tending to corroborate evidence of relevant fact 158

Admission by party to proceeding or his agent ... 18

person interested in subject-matter of proceeding 18

person from whom interest derived by party to suit 18

person whose position or liability must be proved as against

party to suit , ... 18

person expressly referred to for information by party to suit. . . 20

suitor in representative character 18

definition of ... 17

in civil oases, when relevant 23

may operate as estoppel 81

not conclusive proof 31

of evidence, improper, when no around for new trial 167

of execution by party to attestea document 70

oral, as to contents of documents, when relevant , 22

proof of, against person making it, and by or on his behalf ... 21

Admissions 17—31160-

Admitted fact need not be proved 68 ...

PAGB19219 9

199

176

177203203168147

147147147155

184176185147

147147147147147147147

201212201

204210160160160

160161

160160

163164164214182162

161-164178

2l8 Index to Act.

Affairs of state, admissibility of evidence of

Affidavits presented to Court or Oiiicer, Act not appKcable to

Agent. Sea '

' Principal and Agent."Agreement, oral, evidence of, inadmissible to vary terms ofwritten contract, &c. 92Ambiguous document, exclusion of evidence to explain

See "Language"Annoying questions. Court to forbidAnswer of witness. See "Witness."Arbitrator, proceedings before. Act not applicable to

Army of Her Majesty. See " Articles of War."Articles of War for Her Majesty's Army and Navy, Court must take judicial

notice of

Assessors, questions to witness byAttested document, not required by law to be attested, proof of

required by law to be attested, proof of ... 6;

Attesting witness, proof when he cannot be found, or document executed in

the United Kingdomproof when he denies execution

when execution of document must be proved byAttorney. Se« "Powers of Attorney."

certain questions asked by, without reasonable grounds, may bereported to High Court

communication made to, by or for client, when disclosable

when not disclosable ...

waiver of privilege

Authority. See "Estoppel."

Bad character, relevancy of, in criminal proceedings...

Bailee estopped from denying authority of bailor

may prove right of person to whom he delivers goodsBailor, authority of, estoppel of bailee from denying...

Barrister, certain questions asked by, without reasonable grounds, mayreported to High Court

communication made to, by or for client, when disclosable

when not disclosable

waiver of privilege

Bill of Exchange, acceptor of, estopped from denying authority of drawermay deny drawing

Birth during valid marriage, when conclusive proof of legitimacy ...

!o1?s["e of^*''^ "' }^-"Kelevancyoffacts."

Bona fides, i'ee "Good faith."

Book of Laws, presumption as to genuineness of

Books of Account, entries in, when relevant ...

Books, presumption as to ... ...

Bribe, credit of witness impeached by showingBritish India, Act extends to whole of

laws in force in, Court must take judicial notice ofBritish territories. Court must take judicial notice of

British territory, proof of cession of

Burden of proof 101-

definition of

as to asserted legal right or liability

in suit or proceeding

as to particular fact

of fact necessary to be proved to make other evidence ad-missible

that case of accused is within exceptions of Indian PenalCode

of fact especially within knowledgeof death of man known to have been alive within 30 years

SECT.

Index to Act. 219

Burden of proof that man is alive who has not been heard of for 7 years

as to relationship in case of partners

landlord and tenantprincipal and agent

as to ownershipof good faith where one party stands in position of active

confidence

Business. Su "Course of business."

SECT.

220 Index to Act.

Contents of documents, oral evidence of, secondary evidence

of statements by other persons of,

when admissibleContract in form of document, evidence of terms of

exclusion of evidence, of oral agreement vary-

ing terms of

examination of witness as to ...

Contradiction of proved relevant statementofwitness

Contradictory terms of written contract, &c. 5ee " Exclusion of Evidence."Conviction, previous, relevancy of, in criminal proceedings

upon evidence of accomplice only, not illegal

Copy of document, when witness may refresh memory by reference to

secondary evidenceCorroboration of proved relevant statementCounsel. ^See "Barrister."

Counterpart, how far primary evidence

secondary evidence ...

Course of business, existence of, when a relevant fact

Course of proceeding of Parliament and Indian Law Couucil-s, Court musttake judicial notice of

Court. See "Judge."Act applicable to judicial proceedings in

not applicable to af&davits presented to

definition of

names of Members and Officers of, Court to take judicial notice of ...

to forbid insulting questions

Court Martial, Act applicable to judicial proceedings before

Courts, seals of, of wMch Court m'jst take judicial notice

Credit of witness, how impeachedquestions in cross-examination affecting 146-

when may be confirmed

when may be impeachedCriminal proceedings. iSee "Confession."

husband or wife of accused competent witness

relevancy of bad character

good character

previous conviction

Criminating answer, witness not excused from answering on ground of 132—Cross-examination of Witness as to previous written statements

when they must beproduced

leading questions may be askedmeaning of

must relate to relevant facts

not confined to facts upon which examined in

chief

on new matter introduced in re-examinationproducing documentquestions to test veracity, &c. ... 146-

not to be asked without reasonablegrounds

when Court may report asking ofquestion to High Court

to character

upon answer to Judge's question, when per-mitted

upon writing with which he refreshes memoryCustom. Ste. "Relevancy of facts."

general, relevancy of opinions as to existence of 48 ... 173

Damages, relevancy of character as affecting 55 ... 175

SECT.

Index to Act 221

suits for, relevancy of facts in 12Dead person, statement of. Sia " Relevant facts.

"

Death of man known to have been alive within 30 years, hurden of proving 107who has not been heard of for seven years, burden of proving

_, . .life 108

Decision, reversal of. See " Reversal of decision," " Reports of decisions."Decree. See "Judgments."Deeds, title, of witness not a party, production of 130Defective document, exclusion of evidence to explain 93Definitions 3Disease of body or mind, person affected with, when incompetent as witness 118" Disproved," definition of 3Divisions of time, when Court must take judicial notice of 57Document. See " Evidence," " Presumption," " Production of document."

contents of, how proved 61definition of 3if production refused, when party refusing can afterwards give

it in evidence 164

SECT. PAGE156

presumptions as to 79—90 185—187private 75produced by witness, translation of 162

when Court may inspect 162when referring to matters of State ... 162

on notice, party producing entitled to have it in

evidence 163production of, by witness 162

power of Judge to order 165which another person, having possession, could

refuse to produce 131public 74—78 183, 184used by witness to refresh memory, production of, to adverse party 161

Documentary evidence 61—90 179definition of 3

212—187

149exclusion of oral, by 91—100 188—193"200Dumb "Witness, mode of giving evidence by 119

Enactments repealed 2

Entry in books of account, when relevant ... 34public record, &o., made in performance of duty, relevancy of ... 35

Estoppel, admission may operate as 31definition of 115of acceptor of Bill of Exchange from denying authority of drawer 117

bailee or licensee from denying authority of baQor or licensor 117licensee of person in possession of immovable property from

denying licensor's possession 116tenant from denying landlord's title 116

Evidence. See the various titles.

admissibility of, Judge to decide as to 136admissible as to appUcation of language to one of two sets of facts,

to neither of which whole correctly applies 97which can apply to one

only of several persons

or things 96

as to use of language unmeaning in reference to exist

ing facts

as to written document or contents

to show meaning of illegible characters, &c.

when statement forms part of conversation, book, &c.

definition of

documentaryexclusion of oral by documentaryimproper admission of, when no ground for new trial

2 22 Index to Act.

SECT. PAGEETidence,improper rejection of, when no ground for new trial 167 ... 214

inadmissible as to meaning of language when document applies

accurately to existing facta 94 ... 191of affairs of State, admissibility of 123 ... 201of Attorney, Barrister, &o 126—128 201—202of contemporaneous agreement varying terms of document, whomay give 99 ... 193

of dumb witness, mode of giving 119 ... 200of fact when not admissible under CivU Procedure Law 5 ... 150of facts in issue and relevant facts 5 ... 150of husband or wife 120—122 200—201of Interpreter 127—128 ... 202of Judge or Magistrate... 121 ... 200of Magistrate or Police Officer 125 ... 201of oral agreement varying terms of contract, &c., exclusion of ... 92 .-.. 189of parties to suits 120 ... 200of public officer 124 ... 201of terms of contract, &c., in form of document 91 ... 188of witness, when relevant for proving in subsequent proceeding

truth of facts stated 33 ... 167oral 59,60 ... 178

must be direct 60 ... 178proof of facts by 59 ... 178

primary... 62 ... 179rules of, repealed 2 ... 147secondary 63,65, 66 179—182to explain ambiguous or defective document, exclusion of ... 93 ... 191what matters may be proved when relevant statement proved

under sec. 32 or 33 158 ... 211Examination. See " Evidence."

of witness as to written document or contents 144 ... 206of witnesses. Se^ '

' Witness.'

'

Examination-in-chief of witness, leading question, when maybe asked ... 142 ... 206when may not be asked 142 ... 206

meaning of 137 ... 205must relate to relevant facts 138 ... 205when cross-examination question may beasked in 154 ... 209

Examinations of witness, order of 138 ... 205Exclusion of evidence as to meaning of language when document applies

accurately to existing facts 94 ... 191of oral agreement,varying terms of written contract, &c. 92 ... 189

to contradict answer to question testing veracity ... 153 ... 209

to explain ambiguous or defective document 93 ... 191of oral by documentary evidence 91—100 188—193

Execution, admission of, by party to attested document 70 ... 182of document, proof of, when attesting witness cannot be found, or

execution in the United Kingdom ... 69 ... 182when attesting witness denies execution 71 ... 182

when must be proved by attesting witness ... 68 ... 182Executive, acts of, how proved 78 ... 184

Existence of foreign State, &c., when Court must take judicial notice of ... 67 ... 177Expert, definition of 45 ... 171

may refresh memory by reference to professional treatises 159 ... 212

opinion of, expressed in treatise, when proved by production ... 60 ... 178on foreign law, &c., relevancy of 45 ... 171relevancy of facts bearing upon 46 ... 172

Explanation of ambiguous document, exclusion of evidence in 93 ... 191

fact in issue, or relevant fact. S&e, "Relevancy of facts.''

Extent of Act 1 ... 147

Fact. (See "Presumption."

Index to Act.'

223

Fact, admitted need not be proveddefinition of ... ... ... ... ...

evidence of, when not admissible under Civil Procedure LawFact in Issue. See, " Relevancy of facts."

evidence of, may be given in suit or proceedingFacts in issue, definition of

not requiring proof 66-

of which Court must take judicial noticeproof of, by oral evidence ...

relevancy of ... ... E

bearing on opinions of expertsbearing on question whether act was accidental or in-

tentional

forming part of same transaction ...

in suits for damagesnecessary to explain or introduce a fact in issue or re-

levant fact

not otherwise relevant, when they become relevant

showing existence of state of mind, body, or bodily feeling

when course of business concernedwhere right or custom in questionwhich are the occasion, &o., of relevant facts, or facts

in issue

relevant, evidence of, when admissible

Fasts, public, when Court must take .judicial notice of

Festivals, public, when Court must take judicial notice of

Flag, national, of foreign State, &c., when Court must take judicial notice of

Foreign expressions, evidence admissible to show meaning of

Foreign judicial records, certified copies of, presumption as to

Foreign law, opinions of experts on, relevancy of

Forfeiture, exposure to, witness not excused from answering on ground of 132, 147

Fraud in obtaining judgment may be proved ...

Functions of Indian Public Officers, when Court must take judicial notice of

" Gazette of India," notice in, of cession of British territory, proof

<7ffl2eWe, presumption as to genuineness of" General Clauses Act, 1868," sections 7 and 8 repealed

s

Genuineness of documents, &c. See "Presumption."Geographical divisions of the world, when Court must take judicial notice of

Good character, relevancy of, in criminal proceedings

Good faith, burden of proof where one party stands in position of active

confidence Ill ... 196

Government. See '' Notifications of Government.

"

Government Gazettes, of local Governments, &c, presumption as to

genuineness of

Grant, evidence of terms of, when in form of documentexamination of witness as to its being in writing

exclusion of evidence of oral agreement, varying terms of, when in

form of document ... ... ... ... ... ... 92 ... 189

Grounds of opinion. See " Opinion."

Handwriting, identity of, relevancy of opinions of experts onproof of, when necessary ...

relevancy of opinions as to

High Court, certain questions asked by Attorney, &c., without reasonable

grounds, may be reported to ...

Holidays, public, when Court must take judicial notice of

Hostilities between British Crown and other States, &c,, commencement,

&c., of, Court must take judicial notice of

Husband of accused in criminal proceeding, competent witness

party to civil suit, competent witness

SECT. PAGE.

2 24'

Index to Act.

SECT. PAGEIdentity of handwriting, relevancy of opinions of experts on 45 ... 171

witness, questions in cross-examination to discover ... 146—150 207,208not to be

asked without reasonable grounds ... ... 149 ... 208When Court

may report asking of question to High Court 150 ... 208Illegible characters, meaning of, evidence admissible to show 98 ... 192Impeaching credit of witness 155,158 210, 211Incompetency of Court to deliver judgment, may be proved 44 ... 171Indecent questions, when Court may forbid 151 ... 208

may not forbid 151 ... 208India, British, Act extends to whole of 1 ... 147" Indian Councils Act, 1861," repeal of rules, &c., having force of law under

sec. 25 2 ... 147,course of proceeding of Councils under, Courtmust take judicial notice of 57 ... 176

" Indian Penal Code," burden of proof that case of accused is within excep-tions of 105 ... 195

Indian Public Officers, accession to office, &c., of, when Court must takejudicial notice of 57 ... 177

"Indian Succession Act," provisions of, as to construction of "Wills notaffected 100 ... 193

Wills under, how provable 91 ... 188Inference Court may draw when witness in cross-examination refuses to

answer question as to veracity, &c 148 ... 208Information as to commission of offence, source of, Ma^trate and Police

officer not compellable to disclose 125 ... 201Inspection by Court of document produced by witness 162 ... 212Insulting questions, Court to forbid 152 ... 208Interpretation clause 3 ... 148Interpreter. /Sse "Translator."

communication made to, when disclosable 127 ... 202when not disclosable .., 127 ... 202waiver of privilege ... 128 ... 202

Introduction of &ct in issue or relevant fact. /See " Eelevancy of facts.

"

Judge must decide upon proved relevant facts 165 ... 213not generally compellable to answer question as to conduct or

ju(£cial knowledge 121 ... 200when compellable to answer question as to conduct or judicial

knowledgemay be examined as to other matters which occurred in his presencepower of, as to translation of document produced by witness

to compel person to write for comparisonto examine witness and order production of documentto inspect document produced by witness

to decide as to relevancy of facts

Judgment, fraud or collusion in obtaining, or incompetency of Court, maybe proved

Judgments, &c, of Courts of justice, when relevantwhen relevant to bar second suit or trial

in Probate, &c., jurisdiction, of what conclusive proofrelevancy of ...

in other than Probate, &e., jurisdiction, relevancy andeffect of

other than above, when relevant ...

must be based upon proved revelant facts

Judicial notice, facts of which Court must takefacts of which Court takes, not necessary to prove ...

Judicial proceedings before Courts and Courts-Martial, Act applicable toJury, questions to witness by

.. 121 ...

Index to Act. 225

Landlord and Tenant, burden of proof aa to relationship in case ofLandlord, title of, estoppel of tenant from denyingLanguage. See, "Evidence."

admissibility of evidence as to application of, to one of twosets of facts to neither of which whole correctly applies ...

when document applies accurately to existing facts, evidence in-admissible as to meaning of

which can apply to one only of several persons or things,admissible as to application of

immeaning in reference to existing facts, evidence admissibleas to use of

Law book. /Sue " Law of Country."Law of Country, relevancy of statement of, contained in Law BookLaws. &e "Book of Laws."

in force in British India, Court must take judicial notice of

repealed

Leading Question, meaning of ...

in examination in chief and re-examination when may beasked

when may notbe asked . .

.

may be asked in cross-examination

Legislatures, proceedings of, how provedLegitimacy, in what cases birth during valid marriage, conclusive proof of

Licensee, estoppel of, from denying authority of licensor

of person in possession of immoveable property, estoppel of, fromdenying licensor's possession

Licensor, authority of, estoppel of licensee from denyingof immoveable property, possession of, estoppel of licensee fromdenying ...

Lithographed documents, how far primary evidence

Local expressions, meaning of evidence admissible to showLondon Gazette, presumption as to genuineness of

Lunatic, when incompetent as witness

SECT.

109 .

116 .

2 26 Index to Act.

SECT, PA8E.New Trial, improper admission or rejection of evidence, whenno ground for 167 -.. 21iNotary public, seal of, Court must take judicial notice of 57 ... 177Notice to produce. See. "Presumption"

document produced under, party producing entitled to

have it in evidence 163 ... 212if production refused when party refusing can afterwards

give document in evidence ... ... ... ... 164 ... 213rules as to 66 ... 181

When necessary 66 ... 181

when unnecessary 66 ... 181Notification in (?a2e<teo//«(^(ffl. of cession of British Territory, proof ... 113 ... 197Notifications. Sk "Relevancy of statement."

of Government, how proved ... ... ... ... ... 78 ... 184"Not proved," definition of ... 3 ... 150

Obsolete expressions, meaning of, evidence admissible to show 98 ... 192Offence, commission of, source of information as to, Magistrate and Police

officer not compellable to disclose ... 125 ... 201Offensive questions. Court to forbid 152 ... 208Officer, affidavits presented to. Act not applicable to 1 ... 147Official communications, when public officer not compellable to disclose ... 124 ... 201Old age, person of extreme, when incompetent as witness 118 ... 200Onus. See, "Burden of proof."Opinion as to existence of general custom or right, relevancy of 48 ... 173

handwriting, relevancy of ... ... ... ... ... 47 ... 172relationship, relevancy of 50 ... 173usages, tenets, meaning of terms, &c. , relevancy of 49 ... 173

of expert expressed in treatise, when proved by its production ... 60 ... 178on foreign law, &o., relevancy of 45 ... 171relevancy of facts bearing upon 46 ... 172of third person, when relevant 46—51 171—174relevancy of grounds of ... ... ... ... ... ... ... 51 ... 174

Oral admission as to contents of document, relevancy of ... ... ..; 22 ... 162agreement, evidence of, not admissible to vary terms of written contract 92 ... 189evidence 69, 60 ... 178

definition of 3 ... 149evidence of dumb witness deemed ... " 119 ... 200exclusion of, by documentary evidence 91—100 188—193must be direct 60 ... 178of contents of document, secondary evidence ... ... ... 63 ... 179of statements by other persons of contents of documents,when admissible 144 ... 206

proof of facts by 59 ... 178Order. 5ee " Judgments."

of examinations of witness 138 ... 205Orders of Government, &c., how proved 78 ... 184

Ownership, burden of proof as to 110 ... 196

Parliament, course of proceeding of, Court must take judicial notice of ... 57 ... 176Parol. See " Oral Evidence."Parties, power of Judge to examine 165 ...' 213

to civil suit, competent witnesses 120 ... 200Partners, burden of proof as to relationship in case of 109 ... 196Penalty, exposure to, witness not excused from answering on ground of 132, 147 203, 207Photographed document, how far primary evidence 62 ... 179Plans, Presumption as to 83 ... 186

relevancy of statements in 36 ... 168Pleader, certain questions asked by, without reasonable grounds, may be

reported to High Court 150 ... 208communication made to, by or for client, when disclosable ... 126 ... 201

when not disclosable... 126 ... 201

waiver of privilege ... 128 ... 202

Index to Act. 227

79-!

Police officer, confession to, not provable against accusedconfession while in custody of, when provable against accused

how much provable against

accused

Police officer not compellable to disclose whence information obtained as

to commission of offence

Position in life of witness, questions in cross-examination to discover 146-not to be asked without reasonable

groundswhen Court may report asking of

c^uestion to High CourtPower of Judge. See "Judge."Powers of Attorney, presumption as to ..

.

Presumptions as to documents ...

Presumption. Sze " death."

as to books, maps, and charts ...

certified copies of foreign judicial records

document produced as record of evidencedocuments 30 years old

execution &c. of document not produced after notice ...

existence of probable facts

genuineness of book of laws and reports of decisions

certified copies, &e.

document admissible in England or

Ireland without proof of seal or sig-

nature

Gazettes, newspapers, copies of private

Acts of Parliament and other docu-

mentsmaps and planspowers of attorney

telegraph messagesPrevious conviction. S&& " Conviction."

Primary evidence how far counterpart is

printed document &c. is ...

meaning of

proof of document byPrincipal and agent, burden of proof as to relationship in case of

Printed document, how far primary evidence

Private documentsPrivilege. ,See "Attorney," "Barrister," " Marriage, " &c.

of communications during marriage_

...

professional communications not waived by party giving

evidence ...

how far waived when attorney

&c. examined by party

Privy Council, proclamations, &:c. of, how proved

Probate, proof of wUls under " Indian Succession Act," byProceedings before arbitrator. Act not applicable to

civil, parties to suit and husband and wife competent witnesses

criminal, husband or wife of accused, competent witness

Sk "Criminal proceedings."

judicial, before Courts and Courts-Martial, Act applicable fo ...

of what facts evidence admissible in

Proclamations, how proved

Production of document by witness

on notice, if refused in what cases party refusing

can afterwards give it in evidence . ,

.

party producing entitled to have it in

evidence

person summoned does not become witness by ...

power of judge to order

SECT.

25

26

27

125-150

149

PAGE... 163... 163

... 163

... 201

207, 208

... 208

I1O ... 208

85 ...

228 Index to Act.

Production of document, which another person, having possession, could

refuse to produce 131 ... 203

of title deeds of witness not a party 130 ... 203

of writing used by witness to refresh memory, adverse party

entitled to 161 ... 212

Professional adviser. See "Attorney," "Barrister," &c.

communication, when disclosable 126 ... 201

when not disclosahle 126 ... 201

waiver of privilege, as to ... ... ... 128 ... 202

treatise, expert may refresh his memory by reference to ... 169 ... 212

Proof, burden of. See '' Burden of proof.

"

admission not conclusive 31 ... 164

facts not requiting 56—58 176—178

judgments in probate, &c. jurisdiction, of what conclusive 41 ... 170

of admission against person maiing it and by or on his behalf ... 21 ... 161

admitted fact, not necessary 68 ... 178

attested document not required by law to be attested ... ... 72 ... 182

certain public and of&cial documents 78 ... 184

cession of British territory 113 ... 197

contents of documents 61 ... 179

documents by primary evidence 64 ... 180

execution of document required by law to be attested ... ... 68 ... 182when attest-

ing witness cannot be found, or execution in the United

Kingdom 69 ... 182when attest-

ing witness denies execution 71 ... 182

fact, no particular number of witnesses necessary 134 ... 203

facts by oral evidence 69 ... 178

handwriting and signature, when necessary 67 ... 182

legitimacy, in what cases birth during valid marriage conclusive ... 112 ... 197

public document, by production of certified copy 77 ... 183

Wills under " Indian Succession Act " 91 ... 188

"Proved," definition of ' 3 ... 149

Provincial expressions, evidence admissible to show meaning of 98 ... 192

Public documents 74 ... 183

certified copies of 76 ... 183proof of, by production of certified copies 77 ... 183

proof of certain 78 ... 184

Public Festivals, &c., when Court must take judicial notice of 57 ... 177

officer, proof of appointment of... ... ... ... ... ... 91 ... 188

when not compellable to disclose official communications ... 124 ... 201

officers, Indian, accession to office, &c., of, when Court must take

judicial notice of 57 ... 177

record, &c., relevancy of entry In, made in performance of duty ... 35 ... 168

Question. See •' Attoriiey," "Leading question,'' •'Relevancy of facts,''

"Veracity of Witness," "Witness," &c.

asked without reasonable grounds, when may be reported to HighCourt 150 208

Ee-exaimnation of witness, leading question, when may be askedwhen may not be asked

meaning of ...

on new matter introduced by permission of

Courtto character ...

to what directed

Refreshing memory by reference to writing, when made by witnesswhen made by other person . .

.

when witness may refer to copy

142 .

Index to Act. 229

EefresMng memory, expert, by reference to professional treatise ...

Regulations of Government, &o., how proved ...

repealedRejection of evidence, improper, when no ground for new trial

Relationship, relevancy of opinions as to ...

Relevancy of admission in civil cases

bad character in criminal proceedings ...

character as affecting damagesto prove conduct imputed, in oivU cases

conduct ... ... ...

confession made after removal of impression caused hy induce-ment, threat, or promise

entry in public record, &c., made in performance of duty ...

facts

bearing on opinions of experts

bearing on question whether act was accidental or in-

tentional

forming part of same transaction ...

in suits for damages ...

judge to decide as to ...

"necessary to explain or introduce a fact in issue or relevantfact

showing existence of state of mind, body, or bodily feeling

where right or custom in questionwhich are the occasion, &c., of relevant facta or facts in

issue

good character, in criminal proceedingsgrounds of opinion

judgments, &c., to bar second suit or trial

in Probate, &c., jurisdiction

of what conclusive proofin other than Probate, &c., jurisdiction

other than aboveopinions as to existence of general custom or right

handwriting ...

relationship

usages, tenets, &c.,

oral admission as to contents of documentprevious conviction, in criminal proceedingsstatement as to fact of public nature contained in certain

Acts or Notifications

in maps, charts, and plansof Law of country contained in Law Book ...

or act of conspirator

statements" Relevant," definition of

Relevant fact, existence of course of business, when a

facts. See " Relevancy offacts."

examinatiou-in-chief and cross-examination of witness mustrelate to

proved, judge must decide uponwhen evidence of, admissible

when facts not otherwise relevant becomewritten or verbal statement of, by person dead or who can-

not be found, &c., when relevant

Repeal of laws

Reports of decisions, presumption as to genuineness of

Reversal of decision, improper admission or rejection of evidence, whennogroundfor

Eight. ;Se6 "Relevancy of facts."

general, relevancy ofopinions as to existence of

Rule of the Road, Court must take judicial notice of

SECT.

Index to Act.

Eules of evidence repealed

Scandalous questions, when Court may forbid ..

when Court may not forbid

Seal, comparison of, with admitted or proved seal

Seals, of Courts, &c. , of what Seals Court must take judicial notice

Second suit or trial, relevancy ofjudgments, &o., to bar .,„.

Secondary evidence, after notice to producecertified copies

other copies

how far counterpart is ..»

meaning of

*hen admissible of existence, condition, or contents of

documentServant. ;Se« "Attorney," " Barrister," &c.

Shaking credit of witness, questions in cross-examination for ... 146-

not to be asked without reasonable groundswhen court may report asking of question

to High Court"Shall presume," definition of ...

Short title of ActSign manual of British Sovereign, Court must take judicial notice of

Signature, comparison of, with admitted or proved signature '

proof of, when necessary ... ... ...

Signatures of Indian public officers, when Court must take judicial notice of

Sovereign, foreign, existence &c. of, when Court must take judicial notice of

State, affairs of, admissibility of evidence as to

foreign, existence &c. of, when Court must take judicial notice of ...

matters of, document produced by witness referring to

State of mind, body, or bodily feeling. See " Relevancy of facts."

Statement as to fact of public nature contained in certain Acts or Notifica-

tions, relevancy of ... ...

forming part of conversation, document, book, or series of letters

or papers, what evidence admissible

of conspirator, how far a relevant fact

of law of country contained in Law Book, relevancy of

Statements. ySee "Admission."by persons who cannot be called as witnesses 32

in maps, charts and plans, relevancy of

made under special circumstances 34-

relevancy of

written or verba], of relevant facts by person dead or who cannot

be found, &c. , when relevant

when relating to cause of deathwhen made in ordinary course of business

when against interest of makerwhen giving opinion as to public right or custom,

or matter of public or general interest

when relating to existence of relationship

andmade in will, deed, pedigree, or on tomb-stone, &c.

when made in document relating to transaction

by which right or custom created, &c.

when made by several persons and expresses

feelings, &c., relevant to matter in question

Statutes, parts of, repealed Sch. and

repealed, 26 Geo. III. c. 57, s. 38, (part) Sch. and14 and 15 Vic. c. 99, s. 11, and part of s. 19 Sch. and

Subtracting from terms of written contract, &c. See "Exclusion of Evi-

dence."

SECT.

Index to Act.

Suit. See, " Judgments," &c.

for damages, relevancy of facts in

of what facts evidence admissible in ...

Technical expressions, meaning of, evidence admissible to showTelegraph messages, presumption as to

Tenant. See, " Landlord and tenant."

estoppel of, from denying landlord's title

Tender years, person of, when incompetent as witness

Tenets of body of men or family, relevancy of opiniona as to

Terms, meaning of, relevancy of opinions as to

Territory, British, proof of cession of

Title of Act, short

of foreign State, &c., when Court must take judicial notice of

of landlord, estoppel of tenant from denyingTitle-deeds of witness, not a party, production of

Titles of Indian public officers, when Court must take judicial notice of

Transaction. See " Relevancy of facts."

Translation of document produced by witness

Translator. See " Interpreter."

divulging contents of document directed to be kept secret

Treatises. &e" Expert," "Professional treatise."

Trial. See " Judgments," &c.

Trial, New. See " New trial."

United Kingdom, proof of document required by law to be attested whenexecuted in, and attesting witness cannot be found... ... ... 69

Usages of body of men or family, relevancy of opinions as to 49

232 Index to Act.

Witness, credit of, questions in cross-examination affecting ...

cross-examination. <See " Cross-examination of witness."

dumb, mode of giving evidence byevidence of, when relevant for proving in subsequent proceediiig

truth of facts stated

examination of, as to written document or contents

examination-in-chief. "<Sfee Examination-in-chief of witness.''

husband of accused, competent, in criminal proceedings ...

interpreter as

judge as

power of, to examinemagistrate as ... ..

not a party, title deeds of, when compellable to producewhen not compellable to produce

notexcused from answering on ground that answer will criminate 132,

oral evidence of, as to statements by other persons of contents of

documents, when admissible

order of examinations of

party to civil suit, and husband or wife, competent

pleader as

pleader's clerk or servant as

police officer as...

production of document byproof of former statement of, to corroborate testimony ...

public officer as

questions to, by Jury or Assessors

re-examination. See, " Ee-examination of witness."

refreshing memory by reference to writing ...

when made by witness

when made by anotherperson

when witness may refer

to copymay be cross-examinedupon it

statements by persons who cannot be called

to character, cross-examination and re-examination of

translation of document produced byvakil as ... ...

vakil's clerk or servant as

when compellable to answer question in cross-examination testing

veracity, &oin what case Court to

decide

when he may testify to facts mentioned in documentwife of accused, competent, in criminal proceedings

Witnessesexamination of

no particular number necessary to prove fact

order of production and examination of

what persons competent

Writing, comparison of, with admitted or proved writing

to refresh witness's memory, adverse party entitled to production

of, and may cross-examine uponwhen witness may refresh memory by reference to

SECT.

146-150

119

33144

120

127121165121

130130

147

144138120126

127125162

157124166

15§159

159

159

161

32, 33, 140

. 162

. 126

127

PAGE207, 208

... 200

118-

147

148160120-134

135—166... 134... 135118—133

73

161159

167206

... 200

... 202

... 200

... 213

... 200

... 203... 203

203, 207

... 206

... 205

... 200

... 201

... 202

... 201212211201213

211211

211

211

... 212164—168... 205... 212... 201... 202

... 207

... 207

... 212

... 200200—203204—214

... 203

... 204200—203

... 182

212211

111 ANU W. ItlDBll; PRINTKRS, LOWDOW.

The Indian evidence act (I. of 1872)

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Transcript of The Indian evidence act (I. of 1872)